How changing the Electoral Count Act might prevent another Jan. 6: Yahoo News Explains

As the Jan. 6 House select committee continues to investigate efforts by former President Donald Trump and his allies to overturn Joe Biden’s electoral win, there’s a separate movement in Congress to make sure it doesn’t happen again — and this one has bipartisan support. Yahoo News explains the Electoral Count Act of 1887 and how new legislation aims to finally close its many loopholes.

Video Transcript


MARQUISE FRANCIS: The 2022 midterm elections are in full swing.

- There are now less than four months until the midterm elections.

- Will Democrats be able to hold on to their majority?

MARQUISE FRANCIS: And people are already starting to talk about 2024.

- The rumor mill over whether former President Donald Trump will launch a new bid for the White House is hitting overdrive.

KELLYANNE CONWAY: This nomination is President Trump's to have if he wants it.

MARQUISE FRANCIS: Yet, somehow, there's still unfinished business from the 2020 election. As the January 6 House Select committee continues to investigate efforts by President Trump and his allies to overturn President Joe Biden's electoral win, there's a movement in Congress to make sure that doesn't happen again. And this one actually has support from both parties.

Democrats and Republicans have agreed, in principle, to change the Electoral Count Act, which dictates what is supposed to happen when Congress gathers to certify the electoral college votes. So as the process gets underway, here's what you should know.

What is the Electoral Count Act? Well, when the Constitution was first written there were really only five sentences about what happens during a presidential election. But by and large, it outlined the process we still follow today.

There's the popular vote. Then the state picks the electors to send to that electoral college. Then the electoral college votes. Then these votes are counted in certified by Congress and a winner is declared. But as the country grew, federal elections started getting more and more complicated. And eventually, the system broke down.

See, in 1877, Congress couldn't agree who won the 1876 election. It was a super close race and some states took a very long time getting the count together while others were accused of more sinister interference. All around, it was a huge mess, which was only resolved by an emergency commission of congressmen and Supreme Court judges. Rutherford B. Hayes won. By the way, still the only US President named Rutherford.

So after that mess came the Electoral Count Act of 1887, an attempt to clarify what happens between election day and the congressional count. Like, how long states have to certify votes and choose their slate of electors. And it formalized the congressional count to occur on January 6, at 1:00 PM. Ah, January 6, there it is.

Another main focus was on the role of Congress in how to deal with disputes. Objections can be raised. And if at least one member of each chamber agrees, the House and the Senate can go off and debate for up to two hours and then vote on it. If there is a support for the debate, the president of the Senate gavels it down and they move on.

- There's no debate.

MARQUISE FRANCIS: And for just over 130 years, that system worked pretty well.

- It is signed by a member of the House, but not yet by a member of the Senate.

JOE BIDEN: Well, it is over.

MARQUISE FRANCIS: OK, so why are they changing it then? Well, even though the 1887 law cleared up a lot of the procedure, it's still pretty vague. Particularly, when it comes to the role of the Vice President and what to do if there are conflicting sets of electoral votes submitted for the count on January 6.

After the 2020 election, there were attempts to convene fake electors to vote for Donald Trump in several states where Biden had won, to cast doubt on the results.

- The electors from these battleground states signed documents falsely asserting that they were the quote, "duly elected-- electors" from their state.

MARQUISE FRANCIS: And a lot of pressure on Vice President Pence to overstep his power as the president of the Senate to throw out the election results.

DONALD TRUMP: I hope Mike Pence comes through for us. Of course, if he doesn't come through, I won't like him quite as much.

MARQUISE FRANCIS: Luckily, despite the horrific attack on the Capitol, neither of those things happen. But if they had, the US would have plunged into a constitutional crisis.

So you may be asking yourself, what are those proposed changes? Over the next few weeks, the exact language of the new law will come together. But what we do know is that the agreement is intended to close four big loopholes.

Selecting one person in each state, usually the governor, to approve their slate of electors and creating an expedited system of review by the courts to decide any disputes. Making it crystal clear that the role of the president of the Senate is purely ceremonial and that they don't have the power to object to or change results. Raising the threshold for objections in Congress to one fifth of each chamber, which is mostly to get rid of frivolous disputes. Finally, eliminating the ability of state legislators to throw out the popular vote and choose their own slate of electors.

So what's next? The Electoral Count Reform Act already has nine Republicans on board, which means it only needs one more vote to break the filibuster, assuming that it also gets all 50 Democratic votes. As the bill moves its way through committees, some things may be added or lost. But if it does eventually pass, it's very likely President Biden will sign it into law, hopefully, by January 6, 2025.