The Electoral Count Act and the January 6 Committee Hearings
January 6, 2021. The day Americans across the country sat in shock and terror, glued to the television. On every news channel, mobs screamed for rejection of the presidential election results and stormed the Capitol. In the context of the history of American presidential elections, January 6 stands out as a shocking, sudden, and dangerous exception to an unblemished record of orderly transfers of power from one president to the next. The thought on everyone’s mind was “how did this happen?”
In July 2021, the House of Representatives Select Committee to Investigate January 6 was formed to find answers to this question. For a year, the Committee pored over evidence and interviewed witnesses. In culmination of this still ongoing investigation, the Committee conducted eight public hearings in June and early July and will hold more in the fall, all with the intent of finally determining what exactly happened on January 6, 2021 and how.
How the Capitol riots came to pass that day, however, traces farther back than the 2020 election itself. In fact the events of that day trace back all the way to 1887, when Congress passed an act to prevent the controversies that had arisen during the 1876 presidential election. This Act, the Electoral Count Act (ECA), established rules for the steps to be taken from after polls close to Inauguration Day. Since 1887, Congress has not updated the ECA besides to change the date specified for counting electors. Today, it remains full of the same ambiguities and inadequacies that plagued it back then.
Immediately after the dangerous and destructive events leading up to, occurring on, and following the January 6 assault on the Capitol, committees in both Houses of Congress began analyzing the Act’s shortcomings and how the Act should be reformed to prevent their recurrence. The Select Committee’s hearings have demonstrated that the Trump campaign strategy, beginning even before the election, took advantage of these ambiguities and inadequacies. For example, the June 16 and 21 hearings discussed the failed attempt in seven swing states—five of which had Republican-controlled legislatures—to submit fraudulent second slates of electors to Congress. The June 21 hearing also focused on the widespread intimidation of election officials. The 1887 Act included no provisions to prevent these abuses.
A. Fraudulent Slates of Electors
Bogus electors were recruited to sign certificates declaring President Trump the victor in their states so that his campaign could then argue that the election results in those states were disputed. The campaign hoped that on this basis, Vice President Pence would either decide not to certify any electors from those states or return the slates to the states for them to overturn the legitimate election results or at least delay the certification of the election.
The Select Committee exposed this strategy in its questioning of Arizona’s Speaker of the House during its June 21 hearing. When Speaker Bowers learned of the alternate slate of electors that the Trump campaign planned to send to Congress, he thought “The Gang that Couldn’t Shoot Straight.” The Select Committee also revealed texts from Wisconsin Senator Johnson to one of Vice President Pence’s aides attempting to send an alternative elector slate to Vice President Pence on the morning of January 6.
The Trump campaign had been developing this strategy for months. It assured lawmakers in state and federal government and the American public that the strategy was legal because the ECA does not say that it is illegal. The ECA clearly states that the President of the Senate will open each slate of electors and hand them to the four tellers—two from the Senate and two from the House. The tellers then read each slate to the rest of Congress. The Vice President is then required to certify these electors. However, the Act does not provide protections against abuse and fraud in the certification of electoral slates. The new Electoral Count Reform Act (ECRA) bill introduced on July 20 protects against this ploy and tightens and clarifies the rules that apply to other aspects of the election certification process.
B. Intimidation of Election Officials
During the January 6 riots, protestors called for the execution of Vice President Pence when he refused to overstep his Constitutional authority and falsely invalidate President Biden’s election victory. Immediately after Election Day, Trump incited his supporters to intimidate, threaten, and even physically harm election officials for doing their jobs. The threats and harassment continue today. The Select Committee described election officials as “the backbone of democracy.” Yet, the ECA provides no protections for them. A poll by the Brennan Center found that one out of every six election officials experienced threats. Additionally, three quarters of those surveyed felt that threats against them had increased in recent years, leading many to leave their jobs altogether. The Brennan Center reported further that people who threaten election officials are rarely prosecuted.
During the June 21 hearing, the Select Committee heard testimony from Shaye Moss and her mother Ruby Freeman, both local election officials in Georgia. In the aftermath of the 2020 election, President Trump personally accused Shaye Moss of falsifying election results. He claimed that a video showed Freeman passing Moss flash drives full of fake votes. What she was actually passing was a ginger mint. Because of these false claims, Moss was inundated with threats against her and her family. Moss testified before the Committee about the debilitating stress that resulted from those threats and that has stayed with her since. Both Moss and Freeman no longer feel safe anywhere and still live in constant fear.
President Trump’s attacks against Moss and Freeman exploited the lack of protections for election officials in the ECA. By discrediting election workers, he attempted to change vote counts at the local level and thereby disenfranchise citizens who voted for President Biden. He publicized his claims to galvanize supporters to overturn the election on January 6, and he continues to do so 18 months later.
President Trump’s campaign team also targeted higher-level state officials who oversaw the elections and certified their results. It tried to coerce them in key swing states, both Republicans and Democrats, into certifying the election for President Trump in the Electoral College. As Chairman Thompson of the Select Committee explained, “A handful of election officials in several key states stood between Donald Trump and the upending of American democracy.” When these officials refused President Trump’s demands, he publicly attacked them. The intended result was a barrage of threats against them. President Trump even released some of these officials’ phone numbers and addresses, leading protestors to threaten them in their homes and in constant phone calls. Without justification, he endangered them physically and inflicted unwarranted emotional and financial damage on them.
Also on July 20, the Senate Rules Committee introduced a second bill, the Enhanced Election Security and Protection Act, to protect election officials and other election resources like records and technology and in other respects to assure and improve the accuracy and reliability of presidential elections.
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The Select Committee hearings have given us the answer to what permitted the destructive and illegitimate efforts to undermine the valid results of the 2020 presidential election: the Electoral Count Act of 1887. They documented Trump’s campaign to exploit its deficiencies. The Act’s failure to prevent the submission of fraudulent electoral slates and the intimidation of election officials are two defects that require reform. There are various other alarming inadequacies in the Act that the 2020 election revealed.
Now Congress, on both sides of the aisle, in the form of the two reform bills, is giving us the answer of how to prevent these threats in the future. These bills will go through the normal legislative process of deliberation, discussion, and amendment. Both Democratic and Republican Congressional leaders agree that these bills must be adopted in this Congressional term because effective reform is unlikely to be passed in the next Congressional term. Failure to do so endangers a presidential election system that needs to assure that the country has a government of the people, by the people, and for the people.