No matter what happens in the upcoming midterm elections, Congress should act before the end of this year to safeguard the nation from any more Trump-style attempts to overthrow the will of the voters.
As the House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol has shown in masterful detail, the horror of that day went beyond the violent mobs that interrupted the peaceful process of certifying an election. The rioters — hundreds of whom have been charged with crimes — were the most visible manifestation of former President Trump’s multifaceted attempt to cling to power despite being voted out of office.
But other parts of Trump’s plot — such as pressuring Vice President Mike Pence to throw out legitimate electoral votes for Biden — involved interpretations of the Electoral Count Act of 1887, an arcane law that governs how Congress certifies presidential elections. And that is something Congress can, and should, fix immediately.
The House and Senate have each introduced bills that would make common sense updates to this important law. They clarify what should be obvious — that the vice president’s role in counting electoral college votes is purely ceremonial. Of course a vice president doesn’t have the power to pick and choose which votes get counted, as Pence himself and prominent legal scholars across the political spectrum have said. But if it takes a new law to make that clear, Congress must do it.
The legislation also addresses the cockamamie scheme some Republican lawmakers embraced to stall the certification by objecting to electoral votes from Arizona and Pennsylvania — despite a complete lack of evidence showing widespread problems with their elections. The bills would make it harder for Congress to consider an objection to electoral votes, which can happen now at the request of just one senator and one House member. The Senate’s bill would raise the threshold for an objection to at least one-fifth of each chamber, while the House version would raise it to one-third of each chamber.
The House passed its bill in September, with nine Republicans joining Democrats in support. The Senate version advanced from committee last month with substantial bipartisan approval. At a time when Republicans and Democrats agree on so little, it’s encouraging that lawmakers are coming together to strengthen the system the nation relies on to choose its president.
But this is not a done deal. It is critical that lawmakers in the House and Senate reconcile the two versions of the bill and send it to President Biden’s desk before the year ends. They have just a few weeks to get it done after they return to Washington after the Nov. 8 election. The so-called lame-duck session will be a busy period for Congress, with bills pending to protect the right to same-sex marriage and to ban lawmakers from trading stocks, on top of must-pass budget and defense bills, which will demand a lot of negotiations and wrangling.
An Electoral Count Act update could get folded into the budget or defense bills, House Speaker Nancy Pelosi (D-San Francisco) said in a recent interview with The Times editorial board. But first the House and Senate must agree on how to merge their bills.
“I think that they can be reconciled, and maybe during the lame duck,” Pelosi said.
It would be a terrible shame if this Congress concludes without passing a clarifying overhaul to the law that governs a key component of American democracy.
The Jan. 6 committee has done an extraordinary public service in documenting the many ways Trump tried to overturn a free and fair election. The committee will disband at the end of the year, and with it out of the news, public attention on the fixes needed to defend the electoral process may also dim. Congress must not waste this opportunity to strengthen the law and protect the nation from another attempted coup. Fix the Electoral Count Act before momentum fades.
