Former President Donald Trump issued a statement on Sunday confirming that his efforts to overturn the legitimate results of the 2020 presidential election were…an attempt to overturn the legitimate results of the 2020 presidential election.
Trump responded to the ongoing efforts to modify key provisions in the Electoral Count Act (the law that regulates how Congress certifies results from the Electoral College), by claiming that reform is an indicator of just how close Republicans were to winning the election in January 2021.
“If Mike Pence, Vice President, had ‘absolutely not right’ to alter the Presidential Election results in Senate, despite fraud, and other irregularities why are the Democrats and RINO Republicans trying desperately to pass legislation to prevent the Vice-President from changing the results? Trump wrote. “In reality, they’re saying that Mike Pence was entitled to modify the outcome and that they wish to do so immediately. He didn’t use that power. But he could have overturned it!
This is truly one of my all-time favorite “saying the silent part loud” moments. There is however a very valuable nugget in this.
According to the Electoral Count Act the President of Senate (which, according the Constitution, is also the vice-president) opens the envelopes containing information about the Electoral College. While it was assumed that the vice-president’s role is ceremonial in the entire process, the law does not specify. The following are some examples: There are reasons‘s Joe Lancaster explained last week, Trump and his acolytes “seized upon this vagueness when they tried to pressure then–Vice President Mike Pence to either decline to certify the results, or else simply pick a different slate of electors in enough swing states to tip the election to Trump.”
John Eastman (an attorney who was part of Trump’s legal team) drafted the so-called Eastman memo. It clearly outlines the steps to exploit the Electoral Count Act’s key flaw. If the same party held the vice presidency and a majority of the state-by-state congressional delegations in the House—as Republicans did on January 6, 2020—then the Eastman memo is an effective road map for doing exactly what Trump now admits he was trying to do: get a sitting vice president to overturn the legitimate results of an election.
Pence did not exercise this power. But it would be foolish to believe that partisan hacks—on either side—would not at least try to put this option on the table if the same circumstances are repeated in a future presidential election. A fix for the Electoral Count Act would be essential.
According to reports, a bipartisan group composed of senators is working with Sens. Susan Collins (R–Maine) and Mitt Romney (R–Utah) to make changes to clarify the vote-counting procedures.
Trump’s declaration clarified that the vice-president does not have power to reverse an election. This is the most significant change. But other aspects of the law could be tightened as well, with an eye towards preventing the sorts of shenanigans that Republicans tried to pull in 2020—like prohibiting state legislatures from certifying competing slates of electors in defiance of the certified results. Since the Electoral Count Act was created originally to resolve problems that arose from the 1876 presidential election, it is possible to amend the law in order to address other problems.
Andy Craig from the Cato Institute says that fixing the Electoral Count Act will be crucial to avoid any future constitutional crises. It’s possible that any form of reform in Congress will be a significant improvement on the confusing status quo. Redrawn ECAs should have the Constitutional Separation of Powers as their foundation. This will allow Congress to take action when necessary, but also close the door to partisan misfeasance.
Trump only succeeds in making an argument for reform by showing how close he got to exploiting weaknesses of the law.
Trump wasn’t trying to change that fact. The former president was actually arguing. Against reform—and blaming Pence for refusing to go along with the plot to “change the Presidential Election results in the Senate.” Coming just days after Trump dangled the prospect of pardons for the rioters who stormed the U.S. Capitol on January 6, 2021, it’s not a stretch to suspect that Trump wants to make his personal grievances over the 2020 election a centerpiece of his potential 2024 presidential bid—a bid that might bring him into competition with Pence, who is rumored to be considering running as well.
This is going to make for a messy mess. However, there are few things you can do.
Was ist das? CanThe Electoral Count Act’s vagueness needs to be addressed. Congress should not wait to find out if Pence’s next vice president will be as courageous.