After Jan. 6, lawmakers want to clarify that vice presidents have ceremonial role in counting votes

Lawmakers are negotiating updates to the 1887 Electoral Count Act at the heart of Donald Trump's attempt to overturn the results of the 2020 election.

Bart Jansen
USA TODAY
  • The 1887 Electoral Count Act has been criticized as confusing and contradictory.
  • The statute was at the heart of Trump's strategy to overturn the 2020 election.
  • Updating the statute is part of the legislative justification to investigate the Capitol attack.

WASHINGTON – An archaic law was at the heart of President Donald Trump's attempt to overturn the results of the 2020 election. Now attempts to update the confusing and contradictory statute have become the most likely legislative remedy to emerge from the investigation of the Capitol attack of Jan. 6, 2021.

Expect the 1887 Electoral Count Act to be raised during this month's public hearings of the Jan. 6 committee, which will focus in part on how Trump and his allies leaned on ambiguities in the law to pressure then-Vice President Mike Pence to reject certain state electors and hand the election to Trump.

Pence refused. But the strategy tested the statute enough that, to avoid confusion in the 2024 presidential election, Republican and Democratic members of Congress have discussed for months how to update the Electoral Count Act – action that could come this year. 

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A leader of the negotiations, Sen. Susan Collins, R-Maine, told USA TODAY there is broad consensus to define the vice president’s role as strictly ceremonial in overseeing the count of Electoral College votes as Senate president. The consensus is also to change the threshold for objecting to a state’s electors from at least one member in the House and Senate to 20% of each chamber, she said.

“Legal experts are telling us it’s imperative. We’ve just got to clarify this law,” Collins said. “It is very ambiguous. It is contradictory. It’s written in this obscure language. It’s not consistent with the Constitution. We need to get it done this year.”

A member of the Jan. 6 committee, Rep. Zoe Lofgren, D-Calif., told USA TODAY she is “very close to agreeing” on legislation with Rep. Liz Cheney, R-Wyo., the vice chair of the Jan. 6 committee. Lofgren said the goal is to pass legislation this year, which could be considered before, during or after the committee’s June hearings.

“We would like to get this done,” said Lofgren, who is also head of the House Administration Committee. “Anybody who thinks there’s any ambiguity there, which I think would be extraordinary – they would have to be off their rocker to think that – we’re going to make sure that there could not be any ambiguity.”

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Vice President Mike Pence and House Speaker Nancy Pelosi preside over the certification of Electoral College votes at the Capitol on Jan. 6, 2021.

What is the Electoral Count Act and how did Trump try to exploit it in 2020?

The discredited Trump plan relied on a combination of novel interpretations of the 12th Amendment to the Constitution, which lays out how Electoral College votes should be counted, and the 1887 Electoral Count Act to tip the election in his favor.

John Eastman, a Trump lawyer, argued the 12th Amendment gave Pence the sole power to count the votes. The Electoral Count Act, which codified the rules for counting votes, gave Pence the authority to reject votes from seven disputed states because each had two rival slates of electors, according to Eastman.

If neither Biden nor Trump had enough Electoral College votes to become president, the 12th Amendment dictated the contest would be decided in the House, which could elect Trump.

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The Electoral Count Act, which Congress approved after the disputed 1876 election, when several states submitted competing slates of electors, describes in a convoluted way how Congress could settle disputes about which electors to recognize.

Seven states – Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin – had two slates of electors. In each case, one slate was certified by state officials for Biden and another of Trump supporters. The Justice Department is investigating the alternate electors for possible criminal charges.

Chapman School of Law professor John Eastman testifies on Capitol Hill in 2017. Eastman was also a former lawyer for former President Donald Trump.

To remedy disputes, the Electoral Count Act calls for the House and Senate to vote separately on contested electors. Eastman argued senators could filibuster the debate so the decision remained unresolved.

Another provision of the 12th Amendment says if no candidate receives a majority of votes from the appointed electors, the election is decided in the House, as happened for President John Quincy Adams after the election of 1824. Each state gets one vote. A majority of House delegations had Republican majorities in 2020, so Eastman said Trump could have won under that scenario.

Pence rejected Eastman's strategy. Pence explained in an Oval Office meeting Jan. 4, 2021, with Trump and Eastman that none of the framers of the Constitution would have given the vice president that much power, according to court records.

U.S. District Judge David Carter ruled in a case dealing with Eastman's email that the scheme "lacked factual basis but legal justification." Carter ruled Trump and Eastman "more likely than not" dishonestly conspired to obstruct Congress.

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Lawmakers want the vice president's role in vote counting to be purely ceremonial

Trump has argued that legislative attempts to change the Electoral Count Act prove that the strategy was legitimate. To prevent a recurrence of Eastman's argument, lawmakers said the consensus in updating the statue is to make clear the vice president's role is ceremonial.

In reaching the consensus, Collins said the bipartisan group of senators consulted a group of legal experts at the American Law Institute, including former White House counsels Democrat Bob Bauer and Republican Don McGahn.

The legal group said Congress should clarify in the updated version of the Electoral Count Act that the vice president's role is limited to opening the envelopes from state officials and presiding over the meeting. The legal group also said Congress should raise the threshold for objecting to electors "considerably."

Sen. Susan Collins, R-Maine, speaks after the Senate acquitted former President Donald Trump in his second impeachment trial in the Senate at the U.S. Capitol in Washington, Saturday, Feb. 13, 2021.

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The Electoral Count Act require at least one lawmaker from each chamber to raise an objection, which prompts a vote by the full Congress. The Senate group's consensus to raise the threshold to 20% from each chamber might have prevented votes on challenges to Arizona’s and Pennsylvania’s electors. The riot interrupted debate on the Arizona objection for several hours.

“One certain outcome of this whole process is the weakening of our democracy and the threatening of our democracy,” Rep. Raul Grijalva, D-Ariz., said at the time. “Beginning with Arizona, Congress is being asked to chase down a rabbit hole baseless, discredited and judicially discarded fringe conspiracy theories.”

The legislation could still founder. Tinkering with election law during an election year is often contentious. Two different Senate committees could review whatever the bipartisan group produces.

The second-ranking leader of the Senate, Sen. Dick Durbin, D-Ill., who drafted a version of the legislation with Sens. Amy Klobuchar, D-Minn., and Angus King, I-Maine, said he thought momentum “kind of slowed down politically.” But Durbin said he would still like to see it revised this year.

“That law was written under extraordinary circumstances many years ago and needs to be rewritten,” Durbin told USA TODAY.

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Rep. Zoe Lofgren, D-Calif.

More contentious issues in the legislation remain unresolved. For example, federal lawmakers have questioned what would happen if a partisan official changed a certification at the state level.

Trump called a fellow Republican, Georgia Secretary of State Brad Raffensperger, after the 2020 election urging him to “find” about 12,000 votes he needed to win the state. Raffensperger refused. Fani Willis, the district attorney in Fulton County, Georgia, is investigating.

“We’re continuing to tackle other issues that are complicated,” Collins said without listing the unresolved issues.

A member of the investigating committee, Rep. Adam Schiff, D-Calif., said it's important to clarify ambiguities in the statute. But Schiff, who led the prosecution during the first Trump impeachment over his dealings with Ukraine, when the Senate acquitted Trump of obstructing Congress and abusing the power of his office, said people sometimes ignore laws.

"As we saw during both impeachments, if members are not willing to live up to their oath of office, it doesn’t matter how well something is written," Schiff told USA TODAY. "The impeachment provision is pretty clear. The evidence in the impeachments was pretty clear. Yet there was a lack of will to uphold the oath."