By Richard L. Hasen / Special To The Washington Post
The special House committee hearings investigating the events surrounding the Jan. 6, 2021, insurrection — which began Thursday night in prime time — may serve multiple purposes: They could reveal more evidence that could be used to file criminal charges for attempted election subversion against some of former president Donald Trump’s lawyers, against people who tried to manipulate the count of electoral college votes and potentially against Trump himself. They could provide the most comprehensive account yet of the unprecedented attempt by Trump and his allies to disrupt the peaceful transition of power after the 2020 election; a gift to future historians.
But the most important thing the hearings can do — given that, if someone tries to steal the next election, they won’t do it precisely the way Trump and his allies tried in 2020 — is to shift our gaze forward: They can highlight continuing vulnerabilities in our electoral system and propose ways to fix them, before it is too late.
The hearings also represent the best chance to galvanize public support to address these weak points, which is important, because the window for passing such legislation is closing; if Republicans retake the House in November, they will never put forth bills that imply the country needs protection from Trump, their kingmaker. If these hearings don’t spur action by this summer or fall, expect Congress to do nothing before the 2024 elections, at which point American democracy will be in great danger.
Known vulnerabilities: Any attempt to subvert the next presidential election is likely to be far more efficient and ruthlessly targeted than the last effort. It will be focused on holes and ambiguities in the arcane rules for counting electoral college votes set forth in the Constitution and in a poorly written 1887 law, the Electoral Count Act.
There’s much that can be done to fix those problems, as a diverse group of prominent legal scholars, convened by the American Law Institute and including former Obama White House counsel Bob Bauer and former Trump White House counsel Donald McGahn, has suggested. To begin with, Congress can revise the Electoral Count Act to create a more robust role for federal courts in making sure that states follow their own rules for picking the winner of their electoral college votes. Courts are not perfect, but they stood strong in 2020 against more than 60 attempts by Trump and his allies to overturn election results, and they are the best hope to deal fairly with any future conflict over the rightful winner of a state’s electoral college votes.
Congress should also mandate that voting machines produce paper ballots that could be recounted in the event of an election dispute, provide adequate funding for fair elections, increase protection of election workers and officials against harassment and violence, and stiffen criminal penalties for interfering with official election proceedings. (Some of these provisions, like the paper-ballot requirement, were in the Freedom to Vote Act, which Democrats failed to get through the Senate this year.)
Heading off ‘alternate’ slates of electors: But revision of the Electoral Count Act may prove especially important. Imagine that 2024 features a rematch between Trump and President Joe Biden, and Biden once again narrowly prevails in Arizona and Pennsylvania. By that year, those states may have as their governors two leaders who embrace the “big lie” that Biden’s victory was fraudulent: Doug Mastriano, the Republican nominee in Pennsylvania, and Kari Lake, who is making a strong bid to be the Republican nominee in Arizona. One or both could reject a state vote tally favoring Biden and attempt to send in an alternate slate of electors in 2024 favoring Trump.
On what basis could they try to reject a vote of the people? As Politico has reported, the Republican Party is instructing volunteer poll workers on how to challenge voters on Election Day, teaching them to report any issues at polling places directly to GOP-affiliated lawyers rather than to their poll-worker superiors. This disruption of the chain of command in state election machinery could easily lead to chaos and confusion, which then could serve as an excuse for someone like Mastriano to claim that Trump is the real winner.
If the role of federal courts is clarified by new legislative language, however, judges could intervene to determine that Biden actually won the state and that there was no fraud that rendered the election results suspect.
Other changes to the Electoral Count Act would also help. A new set of rules could state definitively that the vice president, who presides over the Jan. 6 counting of electoral college votes, has no power to deprive Congress of lawfully submitted slates of electors; contrary to the outlandish argument made by the lawyer John Eastman, formerly of Chapman University. Vice President Mike Pence declined in 2021 to attempt the scheme floated by Eastman and urged by Trump, but these decisions should not be left up to individual leaders.
Benefit to both parties: Reforms of the law along these lines would benefit both parties. After all, it will be Vice President Kamala Harris who will preside over the counting of electoral college votes on Jan. 6, 2025. Say the presidential election hinges on Georgia and Trump is narrowly declared the winner of that state; and there are allegations of vote suppression. Feeling pressured to not present Georgia’s votes to Congress for counting, Harris could purport to determine that suppression rendered the state’s election unfair, allowing her to throw out the Georgia results.
Such a move seems very unlikely, because the vice president has never indicated that she would not follow the law. But we should not have to rely on conscience; and we don’t know the ethics of some future vice president who will preside over the Senate.
The Electoral Count Act says a challenge to electors can proceed if one member from each chamber (House and Senate) agrees. That threshold should be raised significantly. Congress can clarify, too, that challenges to electors must focus on such constitutional issues as the eligibility of candidates, not on disagreement over vote totals. Moreover, Congress can specify that a “failed” election — language used in the current act to specify an instance when state legislatures might need to step in — refers to elections thwarted by, for example, a natural disaster, not by false claims of voter fraud or irregularities.
What the committee can do: By showing precisely what went wrong in 2020, and which safeguards held, the committee hearings can make clear to the public the need for new legislation. The story of 2020, the hearings will reveal, is that a few heroic Republicans and Democrats acting in good faith — such as Georgia’s Republican Secretary of State Brad Raffensperger —and protected our election process from subversion despite our murky and byzantine laws.
Just as important, the hearings should try to rally public opinion about the need for Congress to act to protect free and fair elections. Americans may have different views about abortion, taxes, climate change and immigration. But we should all agree that American elections should be conducted so that all eligible voters, but only eligible voters, may easily vote; ballots are accurately counted; and the winner assumes power.
In January, after Democrats failed to pass major voting rights reform, reports emerged that Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va., were in talks aimed at combating election subversion by, among other things, fixing the Electoral Count Act. New reporting from USA Today indicates that those talks are continuing and that two Jan. 6 committee members, Reps. Zoe Lofgren, D-Calif., and Liz Cheney, R-Wyo., are close to an agreement on their own reform package.
With the fall elections looming, and given inflation, arguments over gun violence, the resurgence of the coronavirus and the war in Ukraine, it would be quite easy for election legislation to fall off the agenda. That would put American democracy in serious danger, even if most Americans don’t realize it. The window is closing on the chance to protect the 2024 presidential election from interference. But if the Jan. 6 committee conducts its hearings effectively, it will improve the odds that our democracy can be safeguarded in time.
Richard L. Hasen is the chancellor’s professor of law and political science at the University of California at Irvine and the author of “Cheap Speech: How Disinformation Poisons Our Politics — and How to Cure It.”
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