New provisions for the US Election Counting Act make it more difficult for politicians to prevent the peaceful transfer of power.
Published On 23 December 202223 December 2022
The United States Congress on Friday gave the final passage to the legislation that changes the Act on the Electoral Count, an arcane law that regulates the certification of a presidential contest.
The legislation marks the strongest effort yet to prevent a repeat of former US President Donald Trump’s violent push to reverse his 2020 election loss.
The House passed the overhaul of the act as part of its vast year-end spending bill after the Senate approved identical wording Thursday. The legislation now goes to President Joe Biden for his signature.
In a statement on Friday, Biden praised the inclusion of the legislation in the spending bill, calling it “a critical bipartisan action that will help ensure that the will of the people is preserved.”
It is the most significant legislative response that the US Congress has made so far to address Trump’s aggressive efforts to change the popular vote. And it was a move encouraged by a select committee in the United States House of Representatives tasked with investigating the events of January 6, 2021, when Trump supporters attacked the United States Capitol.
In its 800-plus page report released Thursday, the House committee documented internal White House discussions between Trump and his advisers about whether to violate provisions of the Act on Electoral Count by refusing to count certain electoral votes.
Friday’s legislation to amend the 1887 law — long criticized as poorly written and confusing — won bipartisan support. The new provisions make it more difficult for future presidential losers to prevent the ascension of their enemies, as Trump tried to do on January 6, 2021.
“It’s a monumental achievement, particularly in this partisan atmosphere, for such a major rewrite of a law that is so crucial to our democracy,” said Rick Hasen, a law professor at the University of California Los Angeles. . “This law goes a long way toward closing the avenues that Trump and his allies tried to use in 2020, and could have been exploited in future elections.”
On January 6, Trump targeted Congressional ratification of the Electoral College vote. He tried to exploit the role of the vice president in reading the states’ electors to get Mike Pence to block Biden from becoming the next president by leaving out some states that Biden won from the roll.
The new provisions make it clear that the vice president’s responsibilities in the process are only ceremonial and that the vice president has no say in determining who actually won the election.
The new legislation also raises the threshold required for members of Congress to object to voter certification. Previously, only one member of the House and Senate respectively had to object to forcing a roll call vote on a state’s electors.
This has helped make objections to new presidents something of a routine partisan tactic, with Democrats objecting to the certification of both the 2016 elections of George W Bush and Trump.
Those objections, however, were mainly symbolic and came after the Democrats had conceded that the Republican candidates had won the presidency.
On January 6, 2021, Republicans forced a vote to certify Biden’s victories in Arizona and Pennsylvania even after the violent attack on the Capitol, as Trump continued to falsely insist that he had won the an election. This has led some members of Congress to worry that the process can be easily manipulated.
Under the new rules, one-fifth of each chamber would be required to force a vote on the states’ electoral rolls.
The new provisions also ensure only one slate of electors to be made by Congress after Trump and his allies tried unsuccessfully to create alternative slates of electors in the states won by Biden.
Each governor will now be required to sign the electors, and Congress cannot consider slates submitted by different officials. The bill creates a legal process if any of those electors are challenged by a presidential candidate.
The legislation would also close a loophole that wasn’t used in 2020 but election experts feared it might be: a provision that state lawmakers can name electors in defiance of their state’s popular vote in the event of a “failed” election.
That term has been understood to mean a contest that was disrupted or so in doubt that there was no way to determine the actual winner. But it is not well defined in the previous law.
Now a state can move the date of its presidential election – but only in case of “extraordinary and catastrophic events”, such as a natural disaster.
Hasen said that while the changes are significant, there are still dangers to democracy, noting that in Arizona, the Republican nominee for governor, Kari Lake, was awaiting a decision on Friday in a lawsuit she opened to overturn the victory of her Democratic opponent, Katie. Hobbs.
“No one should think that the passage of this legislation means we’re out of the woods,” Hasen said. “This is not one and done.”
