By Carl Hulse
The House earlier this week took the first major step to respond to the Jan. 6, 2021, assault on the Capitol, voting mostly along party lines to overhaul the 135-year-old Electoral Count Act, the law that former President Donald Trump tried to exploit that day to overturn his defeat.
The bill was the most significant legislative answer yet to the riot and the monthslong campaign by Trump and his allies to invalidate the 2020 presidential election, but it also underscored the lingering partisan divide over Jan. 6 and the former president’s continuing grip on his party.
It cleared a divided House, passing on a 229-203 vote. All but nine Republicans opposed the measure, wary of angering Trump and unwilling to back legislation co-written by Rep. Liz Cheney, R-Wyo., a leader of the House select committee investigating the events of Jan. 6 and what led to them.
The partisan division could complicate future negotiations with the Senate, which is moving ahead with its own bipartisan version of the legislation that differs from the House bill in some significant respects. Lawmakers now say they do not expect final approval before Congress returns for a lame-duck session after the Nov. 8 midterm elections.
The legislation is aimed at updating the law that governs Congress’ counting of the electoral votes cast by the states, the final step under the Constitution to confirm the results of a presidential election and historically a mostly ceremonial process. Democrats said that the aftermath of the 2020 election — in which Trump and his allies’ attempts to throw out legitimate electoral votes led to the violent disruption of the congressional count by his supporters Jan. 6 — made clear that the statute needed to be changed.
“These are common-sense reforms that will preserve the rule of law for all elections moving forward,” said Rep. Jim McGovern, D-Mass., chair of the Rules Committee. “Time is running out before the next election.”
One key provision in the bill, which is also contained in the Senate proposal, would clarify that the role of the vice president, who by law presides over the counting of the ballots as president of the Senate, is strictly ministerial. After the 2020 election, Trump and his advisers tried but failed to persuade Vice President Mike Pence to refuse to accept electoral votes from states where Trump was falsely claiming victory.
The measure also would raise the threshold substantially for Congress to consider an objection to a state’s electoral votes, requiring that at least one-third of the House and Senate sign on to such a challenge, up dramatically from the one member of each chamber that is now required. The Senate proposal has a lower threshold, requiring one-fifth of the House and Senate to agree.
Members of both parties have raised objections in recent elections, although none have been sustained by a majority of the House and Senate. The House bill would also more narrowly define the grounds for an objection to those with a defined constitutional basis.
“Ultimately, this bill is about protecting the will of the American voters, which is a principle that is beyond partisanship,” said Rep. Zoe Lofgren, D-Calif., who leads the Administration Committee and introduced the measure with Cheney. “The bottom line is if you want to object to the vote, you’d better have your colleagues and the Constitution on your side.”
Passage of the bill comes as the Jan. 6 committee is wrapping up its work after a summer of high-profile hearings and preparing an extensive report, which is expected to include recommendations for how to confront the threats to democracy raised by the riot and Trump’s drive to overturn the election. Rep. Bennie Thompson, D-Miss., the chair of the panel, said the next and likely final hearing would take place Sept. 28.
“We have substantial footage of what occurred that we haven’t used; we’ve had significant witness testimony that we haven’t used,” Thompson said in an interview. “This is an opportunity to use some of that material.”
The legislation was also a direct response to Trump’s efforts to orchestrate the submission of fake slates of electors in states won by Joe Biden. It would require that states choose their electors under laws in place before the election, a provision intended to prevent states from reversing course if they do not like the result. And the bill would allow candidates to sue state officials if they failed to submit their electors or certified electors that did not match the election results.
It also would lay out the circumstances in which a federal judge could extend an election following a catastrophe and force election officials to count ballots or certify an election if they refused to do so.
Republicans said the legislation represented a renewed Democratic attempt to exert more federal control over elections that are usually the responsibility of state officials and courts.
Rep. Tom Cole, R-Okla., called it “another attempt to federalize elections at the expense of states.” Other Republicans accused Democrats of rushing the legislation to the floor without review by the appropriate committees or engaging Republicans.
Lawmakers said the legislation’s close association with Cheney led House Republicans to abandon it in large numbers. Her aggressive criticism of Trump prompted Republicans to remove her from a party leadership position in May last year, and she lost her reelection primary last month.
But Cheney noted strong support for the measure from conservative jurists and analysts and called on Republicans to embrace it.
Leaders of the bipartisan group behind the Senate bill, which was made public in July, were surprised by the sudden House action on the legislation just days after it was introduced and after months with few details on how the House was proceeding. Backers of the Senate bill said the House approach could lead to more election lawsuits, a prospect that could increase Republican opposition. But they remained hopeful the bills could be reconciled.
“Failure is not an option,” said Rep. Pete Aguilar, D-Calif., a member of the Democratic leadership and the Jan. 6 panel. “We’ve got to put a piece of reform on the president’s desk. We’ve got to protect democracy.”