capitol riot

It’s Time to Fix the 1887 Law That Led to the Capitol Riot

Thanks to the Electoral Count Act of 1887, rioters would soon break into the Capitol to try to disrupt a certification of Joe Biden’s victory. Photo: Erin Scott/Getty Images

Since there will apparently not be a bipartisan commission to examine the Capitol riot, it’s no longer clear there will be a reevaluation of the arcane law that created the occasion for that attempted insurrection. It was the Electoral Count Act of 1887 that set the procedures whereby states’ electoral votes were counted, challenged, resolved, and finally certified by Congress on January 6.

Practically from the day of its enactment, after 11 years of aborted efforts, the ECA has been regularly denounced as a legislative dog’s meal of vague and confusing procedures. But it has never been significantly revised (other than to adjust its timetable to the 20th Amendment’s change in the start date for presidential and congressional terms). And its drafters were laboring under a number of handicaps: the 12th Amendment’s archaic requirement of a formal count of electoral votes (by whom is not made clear); the overhang of the contested 1876 presidential election and its controversial Electoral Commission, which awarded the presidency to Rutherford B. Hayes, after a clandestine deal involving an end to Reconstruction; and close partisan divisions in Congress and two more very close presidential elections during the period.

In any event, the ECA faded into the footnotes of history until the very eve of the 21st century, when its provisions were noted by the U.S. Supreme Court in Bush v. Gore, ending the most disputed presidential election since 1876 (the majority opinion essentially made the ECA’s Safe Harbor deadline the end date of the 2000 election dispute, requiring a judicial intervention). In 2020, this 133-year-old statute’s obscure procedures for counting electoral votes, which had been followed with virtually no publicity every four years after 33 presidential elections, suddenly came into focus. Though Donald Trump had clearly been defeated in the November election, he encouraged his supporters inside Congress to challenge his opponent Joe Biden’s ritual certification as the winner, and his supporters outside Congress to storm the Capitol to influence and, if necessary, disrupt it.

Before the MAGA multitudes assembled, however, Trump tried to convince Vice-President Mike Pence — who, under the 12th Amendment, would preside over the joint session of Congress that would end their campaign once and for all — that he could “announce” Trump electors for states carried by Biden. Anyone familiar with the background of the ECA knew that one of the main preoccupations of the drafters was to make the vice-president’s role in the process as mechanical as possible. And the only available example of a veep exercising discretion over disputed electoral votes was Richard Nixon’s decision in 1961 to acknowledge the second of two certifications by the same governor of Hawaii (Nixon was certifying his own defeat). This precedent did not give Mike Pence the power to recognize non-state-certified electors, and to his credit he rejected Trump’s pressure to execute a coup (although, under the ECA, both Houses of Congress would have probably overruled him anyway).

Still, the ECA provisions allowing a single House member and a single senator to trigger a contest of any state’s electoral vote gave Team Trump the opening they needed to mount a January 6 challenge, based on Trump’s lies about “voter fraud,” even without Pence’s complicity. That was, unfortunately, the situation, even though all 50 states had met the ECA’s “safe harbor deadline” for certifying the results and ending all credible legal disputes intended to cut off any second-guessing by Congress.

And so you had the January 6 challenges by MAGA Republicans (a majority of the GOP conference in the House), the deadly Capitol riot, and eventually, the last step necessary to make Joe Biden the 46th president.

Perhaps the January 6 nightmare was like an especially rare comet or cicada swarm that we don’t need to worry about for a while. But its inspirer, Donald J. Trump, has not gone away. More important, the idea that presidential election contests should be extended to the last possible moment prior to Inaugural Day, based on arguments like Trump’s assertion that “we can’t lose unless it’s rigged,” is pernicious and self-replicating.

Fixing the Electoral Count Act requires only a majority in both houses of Congress and a presidential signature. There’s even recent precedent of Republican interest in updating it: Last year Senator Marco Rubio introduced legislation to delay the ECA’s Safe Harbor deadline from December 8 until January 1, and the Electoral College vote from December 14 to January 2. His rationale was to provide greater time for resolution of state election disputes so that they wouldn’t short-circuit state certification of results. Since the states did meet the December 8 Safe Harbor deadline, though, there should be renewed interest in ensuring that disputes are not manufactured later and raised during the purely administrative January 6 event.

I’ve been reliably informed that at least one group of academic experts is working on a comprehensive Electoral Count Act fix, but the risk is that the political impetus for dealing with it will slacken, as memories of January 6 fade (much as the intense interest in election reform after 2000 eventually produced the puny Help America Vote Act). The key steps needed are (1) to clarify that only state-certified electoral votes may be “counted” in Congress; (2) to make it clear the vice-president’s “announcement” role does not imply the power to choose noncertified over certified electors; and (3) to make electoral vote challenges during the largely ceremonial certification procedure in Congress much harder (i.e., a much higher threshold than support from one House and one Senate member).

A more definitive solution to the problem of electoral vote disputes would involve a constitutional amendment to remove or replace the troublesome language of the 12th Amendment, and/or to create an independent adjudicator of presidential election disputes; efforts to do just that were made repeatedly before enactment of the ECA. But if reformers are to undertake the arduous task involved in amending the Constitution, they’d do better to simply abolish the Electoral College system altogether. In any event, we should get rid of this notion that a candidate like Trump, who lost the national popular vote by more than 7 million votes, is somehow entitled to claim victory based on tendentious arguments that have already been rejected by the states and the courts. Otherwise, it will happen again.

It’s Time to Fix the Law That Led to the Capitol Riot