Congress can prevent another Jan. 6 by updating a key elections law

The American public does not tend to think highly of Congress. Gallup’s historical poll shows public approval of our national legislature has hovered around 20 percent over the past decade. Very rarely have more than half of John and Jane Q. Public given the thumbs-up to the first branch of government.

That being so, why would anyone imagine that the public wants Congress to have a role in deciding who gets to be president? When polled, the American public decidedly does not want to see the partisans in the Capitol trying to mess with states’ electoral slates. “By a 2:1 margin, voters also believe it should be difficult for Congress to ‘throw out’ a state’s certified presidential election results,” notes a recent survey.

Yet, that is exactly what some politicos sought to do on Jan. 6, 2021.

Then-President Donald J. Trump urged legislators to object to the electoral slates submitted by Arizona, Michigan and Pennsylvania. He also asked Vice President Mike Pence to not count these slates and send them back to state legislators, where GOP majorities might throw out Biden’s win and declare Trump the victor.

This was the president’s final desperate play. For months he had filed lawsuits in states to overturn the results. He also cajoled state legislators to throw out the public’s votes and to declare Trump the winner of their states’ electoral votes. His team’s lugubrious claims about German servers, Italian satellites, Venezuelan software and the like were mostly laughed out of the courts. No state legislatures went far down the path to throwing out their voters’ votes.

Which is why Team Trump turned to Congress, which has the duty of assembling and watching the states’ electoral slates be counted. With coaching by now-disgraced former professor John Eastman, a play was drawn up to turn this ceremonial exercise into a political power play. “Stop the steal” became “steal the count.” 

The effort failed despite the support of Sens. Ted Cruz (R-Texas) and Josh Hawley (R-Mo.), whose egregious decision to challenge states’ slates threw the slate counting into pandemonium and fed the Capitol-storming mob’s delusion. On Jan. 6, Pence stood tall and rebuffed Trump’s entreaties, and sufficient GOP senators joined Democrats to preserve the democratic norm that Congress must respect states’ electoral results.

For those who worry about democracy in America crumbling, there was good news this past spring. The House Committee on Administration turned back efforts to get Congress to override the results of congressional elections in Iowa and Illinois. 

But more should be done to ensure Congress does not monkey with states’ electoral determinations. 

One way to do this would be to update the Electoral Count Act (ECA), the 1887 act that provides vague guidance on how to conclude a presidential election. At least two updates are warranted. 

First, the law should make it bell-clear that the vice president must accept and count electoral votes lawfully submitted by the states. It goes without saying that the Founders would be aghast at the proposition that one person occupying an office once described as “not worth a warm bucket of piss” has the power to serve as a presidential kingmaker. 

Second, Congress should rewrite the ECA to make it more difficult for legislators to derail the counting of states’ votes. This problem has been building since January 2005, when Sen. Barbara Boxer (D-Calif.) and Rep. Stephanie Tubbs Jones (D-Ohio) delayed the tally. They alleged — with no evidence — that George W. Bush’s people had rigged Ohio’s voting machines to steal a victory from John Kerry. Ever since then, more members of Congress have followed suit and grabbed the C-SPAN spotlight by objecting. This mischief can be curtailed by requiring not less than a majority of legislators from both chambers to object for the voting to be paused and the two houses to be required to return their separate chambers to debate and vote upon the allegations. 

Other changes to the law also may be warranted, and there are indications that both Democrats and Republicans in Congress would support an ECA update. Neither party wants to have victory stolen from its president-elect by partisans in the Capitol. And once one party does it, the other party can be sure to return the favor in spades.

It is less than three years until the next presidential election. Blowouts have been few in recent decades, and we had nail-biters in 2016 and 2020. So Congress should heed the public’s wishes and hurry up and do what is needed to ensure we never experience another January 6th.

Kevin R. Kosar (@kevinrkosar) is a senior fellow at the American Enterprise Institute. He is the coeditor of “Congress Overwhelmed: Congressional Capacity and Prospects for Reform” (University of Chicago Press, 2020).