Electoral count law: House special committee targets 134-year-old law in an attempt to prevent another January 6

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The legislation would give the committee a focus on drafting legislation as part of the inquiry, thereby undermining a legal argument made by former President Donald Trump that the committee has no real legislative objective to research his documents at the White House.

Specifically, members are focused on amending a 19th-century law known as the Electoral Tally Act, which aimed to give Congress a process to certify electoral college votes submitted by states. It’s a trivial but crucial part of the presidential electoral machine, which Trump and his allies tried to exploit last year.

Electoral law experts and those calling for reform warn that in light of January 6, the 134-year-old law must be updated and strengthened to ensure that a losing party can never overturn College results electoral.

“The biggest fruit of the 2020 experience is that every phase of the presidential election process has been questioned and is now littered with pitfalls,” said Rep. Jamie Raskin, a Democrat from Maryland who is the one of the members of the select committee involved in the discussion. , told CNN.

David Becker, executive director and founder of the Non-partisan Center for Electoral Innovation and Research, says changes are needed to “limit objections to a few valid issues, such as if a state does not certify voters within the allotted timeframe. , and clarify the purely ceremonial nature of the joint session “, adding such a clarification” would prevent a future vice-president from being pressured to reverse the electoral choices of states “.

Bipartite effort

The effort to craft such a bill began in the House Administration Committee, which is chaired by Representative Zoe Lofgren of California and vice-chaired by Raskin. The two Democrats were named to the select committee, where talks now also include Republican Representative Liz Cheney of Wyoming.

Raskin said no decision has yet been made on what legislation emanating from the committee might entail.

“The select committee is working hard to uncover the facts about January 6 and its causes, and we will be looking at many possible legislative and policy proposals as we draft our report,” said panel chair, Representative Bennie Thompson of the Mississippi, in a statement. at CNN. “One of the most important parts of the select committee’s job is to help ensure that nothing like January 6 happens again, and we take this mandate very seriously.”

Cheney, kicked out of the House GOP conference for joining the Democrats’ inquiry, addressed the effort last week on a podcast with political strategist James Carville and political reporter Al Hunt.

“We are reviewing the 1887 Voter Count Act and whether or not we need to make changes to it to ensure that in the future this type of voter objection is not subject to potential abuse.”

Republicans in Congress have categorically rejected pressure from Democrats to pass voting rights law this year. By crafting a bill from the House select committee investigating Jan.6, Democrats can offer a narrower path to at least tackle electoral subversion.

While discussions were already underway before Trump’s trial, the effort could give the committee a defense against accusations by Trump and his allies that his subpoenas are invalid because they serve no legislative purpose.

Earlier this month, Trump filed a lawsuit to try to prevent the investigation from obtaining records from his presidency by claiming executive privilege, while also accusing the panel’s requests for documents from the ‘executive’ are unprecedented in scale and scope and are not tied to any legitimate legislative purpose.

Respond to Eastman’s Note

A new bill could also address the now infamous Eastman memo, written by Conservative lawyer John Eastman, which outlined a six-step plan for how Pence could have certified the election in favor of Trump. The memo claimed that the electoral count law itself was unconstitutional. Eastman proposed that Pence reject votes from a sufficient number of states Biden won so that the presidential election is decided by the House, where each state gets one vote and Republicans control more delegations from State.
READ: Trump's attorney's full note on Pence's plan to quash election

Becker says changes to the voter count law could prevent such an attempted coup presented by Eastman.

“The VP does not have an extra-constitutional superpower to replace the judgment of voters, of states, with his own personal preference,” Becker said. “The ECA could be amended to make this clear.”

Raskin said lawmakers would also consider whether they should raise the bar for lawmakers to oppose and make it more difficult for state legislatures to overthrow the popular will of state voters.

“It is extremely complicated to figure out how to prevent this kind of derailment of the presidential election,” Raskin said.

Uncertain timeline

Any new legislation would likely come after the committee completes its investigation, sources said, as the panel’s findings would likely influence the drafting of the bill. Thompson said he wanted the committee to act quickly, and they quickly looked down on Trump’s adviser Steve Bannon when he defied the panel’s subpoenas.

But the committee’s efforts to extract loose documents and testimony could still become entangled in legal battles, making it difficult for the committee to complete its investigation. They’re also waiting to see what the Justice Department does with Bannon’s contempt citation.

Despite breaking up with most House Republicans over Trump’s complicity on Jan.6 and the need for a select committee to get to the bottom of it, Cheney has shown no interest in joining House Democrats in adopting their sweeping voting rights bill targeting further restrictions on voting in states. Senate Republicans have blocked several Democratic bills this year.

It is too early to say whether Cheney’s involvement could lead to a different outcome for a bill focused on electoral subversion. It would require 60 votes in the Senate, and the support of 10 Republicans could be difficult – especially if the effort is seen as a rebuke to Trump in the midst of the midterm campaign.

Three days before Congress certified Biden’s Jan. 6 victory and attack on the Capitol, Cheney wrote a note to fellow Republicans saying their objections were at odds with the Constitution and “our core beliefs in as Republicans “.

“By opposing voters lists, members inevitably assert that Congress has the power to overturn elections and overturn state and federal courts,” Cheney wrote. “Such objections set an exceptionally dangerous precedent, threatening to steal the explicit constitutional responsibility of states to choose the president and turn it over to Congress.”

Edward Foley, professor of electoral law at Ohio State University, urged Congress to update the electoral count law before the 2020 election. He argued that the law should specify that once a State correctly confirmed its voters list, Congress should not be able to easily intervene to expel them.

If the House and Senate had supported the objections – if one party controlled both houses of Congress and the other party won the White House, for example – it could have overthrown voters and postponed the presidential election in the House. , thus creating the risk of a constitutional crisis.

“In 2025, this kind of takeover and repudiation of constitutional process could make a difference if the votes are there,” Foley told CNN.

Foley added, “What we’ve been through this year is proof that we need to fix it before next time.”


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