Congress is Ensuring that VPs Can’t Decide the Elections, 2 years post-Jan. 6

  • After months of debate, lawmakers are now poised to approve major changes to the Electoral Count Act.
  • The reforms are included within a broad government funding bill, which is expected to be passed this week
  • One of the changes would be to clarify that no vice president can unilaterally alter the results of a state.

Congress is expected to pass its most expansive post-January 6, actions later this week. These steps would eliminate the possibility of a future vice president unilaterally casting aside election outcomes, among other reforms.

After months of debate, lawmakers are expected adopt changes to the nearly 135-year old Electoral Count Act as well as more recent provisions governing presidential transitions. The reforms were written by Sen. Susan Collins (a Maine Republican) and Sen. Joe Manchin (a West Virginia Republican). They have broad bipartisan support. 

The bill was not passed by lawmakers, so it was attached as part of the $1.7 trillion deal to fund the federal government for most year next year. This is a common method to pass legislation that is not related to government funding.

These changes to ECA are intended to ensure that formal count of the Electoral College votes is not a formal and arbitrary event. After President Donald Trump and his associates tried to argue that ambiguities within existing laws, including the Electoral Count Act would have allowed a combination Vice President Mike Pence, Republican state legislatures, to override millions of Americans’ will in the 2020 election, the new law was passed. Pence refused to comply, insisting that it would not be constitutional after he had reviewed the statements of the founders as well as the research conducted by his legal staff.

“Most people agree to Vice President Pence’s assertion that the Constitution and 12th Amendment did not allow him to disregard electoral ballots, or to ignore how they are counted or make decisions about these alternate slate of electors,” Derek T. Muller (University of Iowa law professor and election lawyer) told Insider. “The Constitution did not allow it. The Electoral Count Act did not allow it.

Mueller, who drafted the legislation with senators, stated that it was aimed to eliminate any ambiguities. He said that lawmakers were determined to make changes that will last beyond the Trump-dominated moment.

Muller stated, “I know people are obsessed about Trump and what happened in 2020, and what could happen 2024. But this bill has been around for close 135 years.” It’s not something you should change lightly and it’s something you want for the next 100+ years.”

Among the most important changes are:

  • Raising the threshold for a member to object to a state’s electoral votes from one to five members in each house to at most 1/5th of each, 87 House Members and 20 Senators (provided there aren’t vacancies). 
  • Clarifying the status of the vice president in charge of the joint session is only ceremonial
  • The old provision that suggested state legislatures could override the popular vote following an election was removed
  • Multiple candidates can have access to presidential funding for transition

These changes were pushed by the House January 6 committee, but senators had already been considering the legislation before the panel officially endorsed them.

How Trump and his aides’ mischief brought us here

It is important that you remember the tactics used by Trump and his associates to argue their case in federal courts after they were denied widespread voter fraud claims.

John Eastman, a conservative attorney and other Trump attorneys, pushed for Pence’s consideration of two options that would have been unheard of in their scope. They asked the vice president to delay the January 6 joint session and/or unilaterally declare that the certified results of disputes states were not valid. This second scenario would have allowed Pence to count pro-Trump voters, potentially changing election results in one state and keeping Trump in the White House. The House January 6 committee recommended that Eastman be charged with criminal offenses for his conduct. 

Susan Collins and Joe Manchin talk in a Senate elevator

In a Senate elevator, Republican Senator Susan Collins of Maine and Democratic Senator Joe Manchin from West Virginia exchange ideas. The main authors of the changes to Electoral Count Act are the pair.

Anna Rose Layden/Getty Images

These pleas were repeatedly rejected by Pence. These were considered illegal by Pence and nearly every major legal scholar. Pence also stated that it would be morally wrong to allow one person to determine an election.

This was the legal norm, so some lawmakers questioned whether it was necessary to declare that no vice-president could do what Trump pressured Pence. 

“It is completely unnecessary,” said Sen. Kevin Cramer, North Dakota Republican. told Steve Scully earlier this month.“I know that people want to know more about the role of the vice-president, but I don’t think they are confused. I think Vice President Pence … did exactly the right thing and previous vice presidents have done the same. I don’t know why this discussion is taking place.”

Trump has suggested that senators have implied that Pence could possess this power by clarifying Electoral Count Act.

Trump wrote, Truth on Tuesday, that he doesn’t care if the Electoral Count Act is changed or not. However, he expressed concern about the lies and ‘disinformation’ being spread by Democrats, RINOS, and Trump on social media. They said that the Vice President had ‘absolutely no option,’ it was carved from’steel. But if he doesn’t have a choice, why are they changing law to say he has no other choice?

Pence wasn’t the only figure present on January 6, 2021. To allow pro-Trump lawmakers throw the election to Vice President, they had to file objections. This process is subject to a very low threshold under current law. A joint session can be suspended if only one member of each house supports an objection. Then, both chambers will vote on whether to uphold the objection.

Rudy Giuliani

Rudy Giuliani, former New York City Mayor, speaks during a New York press conference on June 7, 2022.

Mary Altaffer/Associated Press

In 2001, 2005, 2017 and 2017, Democrats filed objections. As Politifact previously pointed out,The protest was rejected by all the candidates who lost in each election. In all cases, the losing Democratic candidate had also conceded to the presidency election. Democrats did not reach the threshold for sustaining an object until 2005, when then Sen. Barbara Boxer, a California Democrat joined Stephanie Tubbs to object to Ohio’s results. Their objection was denied.

It is worth noting, however, that none of the objections received on January 6, 2021 under the new requirements would have met the initial threshold. While 147 Republicans voted for overturning either Arizona’s or Pennsylvania’s results, or both, only six senators objected Arizona and seven to Pennsylvania.

The legislation would also fundamentally change how presidential transitions are performed

The legislation’s treatment of state legislatures is one of its most consequential changes. Rudy Giuliani, a former New York Mayor, and other Trump lawyers argued that state legislatures can appoint their electors. In this scenario, Republican state legislators could have changed the election by appointing pro Trump voters in states Biden won. Muller stated that the new provisions would make it clear that a state can only get one election.

The bill would make a significant change to presidential transitions, in addition to the election itself. If passed, federal funding could be available to competing candidates for transition funding. Basic business can also be conducted as soon as the results are certified.

This was a major contention point in 2020.

The current law allows the General Services Administrator to declare the apparent winner of an election. Trump appointee Administrator Emily Murphy waited several days after major news agencies declared Biden the probable winner to approve his transition funding.  The changes would allow multiple candidates for funding, potentially avoiding drama in the near future. In certain situations, new provisions could also require an administrator to declare an apparent winner.

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