Senators confident bill to block election subversion will become law

Sens. Susan Collins and Joe Manchin before a Senate hearing on the Electoral Count Act.
Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va., before a Senate hearing on the Electoral Count Act on Aug. 3. (Michael Reynolds/EPA-EFE/Shutterstock)

A day after the House Jan. 6 committee recommended that the Justice Department prosecute former President Donald Trump for trying to overturn the 2020 election, a group of senators announced they will pass reforms to make it much harder to make a similar attempt in the future.

After a year of negotiations on Capitol Hill, Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va., said an update to the Electoral Count Act of 1887 (ECA) would be included in an end-of-year spending bill set to pass this week. It is co-sponsored by a robustly bipartisan group of 39 senators, including leaders of both parties.

“It came down to the very last minute, but … this is a monumental achievement to reduce the catastrophic risks of a stolen presidential election through political manipulation of the electoral count. Thank god,” Matthew Seligman, an expert in election law, wrote on Twitter.

Seligman began studying the ECA in 2016, after Trump said during the presidential campaign that he might not accept the result if he lost. Seligman and other scholars say the current ECA, which was passed in response to the disputed election of 1876, gives too much room for bad actors to deliberately misinterpret its language in an effort to throw out legitimate elections.

Trump won in 2016, but four years later he lost and waged an extended battle to undermine American democracy that resulted in the assault on the U.S. Capitol by his supporters on Jan. 6, 2021. The violent attack was timed to obstruct Congress from certifying the 2020 election results. That step in the constitutional process was delayed that day for the first time in the nation’s history.

President Donald Trump speaks in the White House on election night 2020.
President Donald Trump speaks in the East Room of the White House late on election night, Nov. 4, 2020. (Jabin Botsford/Washington Post via Getty Images)

As members of Congress and analysts grappled with the aftermath of what one federal judge has called “a coup in search of a legal theory,” it took several months for a consensus to form around the need to strengthen and clarify the ECA. This past January, Manchin and Collins began working together on ECA reform.

Also that month, the House Administration Committee released a 35-page report on the need for ECA reform. And in addition, Seligman published an 87-page report that he had spent the last few years working on, which outlined in great detail the ways that the ECA was vulnerable to abuse.

Trump had pressured his vice president, Mike Pence, to reject the legitimate election results and throw out the votes of millions of Americans, which Pence refused to do. “I had no right to overturn the election. The presidency belongs to the American people, and the American people alone,” Pence said in February of this year.

According to witnesses who testified before the Jan. 6 committee, Trump’s ultimate goal, with the help of lawyers John Eastman and Kenneth Chesebro, was to have Congress vote to approve slates of fake electors that did not represent the actual votes in several states. Their hope was to reinstall Trump into the presidency against the wishes of the majority of Americans.

None of this was allowed under the law. Eastman, according to witnesses, knew this and acknowledged it to numerous lawyers inside the White House who have testified to this fact in front of the Jan. 6 committee.

Vice President Mike Pence and House Speaker Nancy Pelosi read the final certification of Electoral College votes.
Vice President Mike Pence and House Speaker Nancy Pelosi read the final certification of Electoral College votes cast in the 2020 presidential election on Jan. 7, 2021. (J. Scott Applewhite/AP)

But the ECA reform bill would shut the door even tighter on portions of the 1887 legislation that were vague enough for lawyers like Eastman to try to exploit. Eastman even admitted that the Supreme Court would unanimously reject his legal theories that Trump was using as a pretext to pressure Pence, according to testimony before the Jan. 6 committee.

Former federal Judge Michael Luttig, a renowned conservative legal mind whom Eastman once clerked for, called Eastman’s machinations “the most reckless, insidious, and calamitous failures in both legal and political judgment in American history” in a statement he provided to the committee.

Under the ECA reform, the role of the vice president is further clarified to ensure that no one can argue that this official has anything other than a ceremonial role as the electoral votes are counted.

The ECA reform also blocks most, though not all, routes to submitting false or fake electors to Congress. Under the new law, only a state’s governor can submit electors to Congress, which prevents “the potential for multiple state officials to send Congress competing slates,” according to a summary of the bill.

Of course, if a governor went rogue and refused to recognize the will of the state's voters, and submitted electors to Congress who did not represent the popular-vote total, that could still create a crisis.

The ECA reform speaks to that scenario as well, setting up a clear and streamlined legal process to adjudicate lawsuits in such a situation. It establishes an “expedited review, including a three-judge panel with a direct appeal to the Supreme Court,” an “accelerated process” that is “available only for aggrieved presidential candidates.”

The certification of Arizona's Electoral College votes is unsealed.
The certification of Arizona's Electoral College votes is unsealed during a joint session of Congress on Jan. 6, 2021. (Andrew Harnik/AP)

No system is foolproof. But the ECA reform’s major strengths are that it tightens the language of how an election is to be certified, it limits the avenues through which bad actors can try to operate, and it tries to ensure that if there is a dispute it can be quickly resolved in the federal courts and ultimately at the U.S. Supreme Court.

Some experts worried that 2020 may have been a trial run for a future attempted coup. And under the existing ECA, bad actors at the state level could submit fake electors, and dishonest actors in Congress could seek to accept those fake electors.

In such a scenario, the ultimate outcome would be confusion, litigation and chaos. There would be a vacuum of authority. Those vacuums are often filled by those willing to trample on the law and seize power by any means necessary.

And so the ECA reform, its authors believe, will significantly limit the potential for disorder and delay that could give an open door to antidemocratic opportunists.

Collins and Manchin said that “our bipartisan group worked tirelessly to draft this legislation that fixes the flaws of the archaic and ambiguous Electoral Count Act of 1887.” The reform is included as part of the year-end omnibus spending package.

The ECA reform bill, they said, “establishes clear guidelines for our system of certifying and counting electoral votes for president and vice president.”

The larger omnibus bill is expected to receive a vote in the Senate this week, to quickly go to the House, and to go to President Biden for his signature before the end of the year.