Comment: The bill that could head off another Jan. 6 debacle

By Noah Feldman / Bloomberg Opinion

Democrats have been frustrated in their hopes to pass a comprehensive voting rights bill. But with Sen. Joe Manchin of West Virginia on board, things are looking up for the most important voting rights legislation that is actually possible right now: the Electoral Count Modernization Act.

The bill won’t do anything about partisan gerrymandering. But it just might save the republic from another Jan. 6-style attempt to subvert the legitimate outcome of a presidential election.

The point of the bill is to address the pressing problems created by the weakness and ambiguity of the 1887 Electoral Count Act. As I laid out in a column on Jan. 5, 2021, the law is in desperate need of reform. Its text opened the door to what happened the day after.

The first problem with the existing law is that it says that both houses of Congress may reject a state’s presidential votes if the slate wasn’t “lawfully certified” by the governor or “regularly given” by the electors. Although the language may sound fine, the problem with it is that a large number of House Republicans in 2021 insisted, against the natural meaning of the statute, that votes from states that had gone Democratic had not been lawfully certified or regularly given.

It didn’t matter much in practice that this Republican interpretation of the law was so preposterous as to be essentially lawless. In this instance, because of how the law is written, it’s up to Congress to say what the law means when it votes to certify the election results.

As a consequence, the people who stormed the U.S. Capitol on Jan. 6 were trying to “persuade” or coerce Congress to vote to reject the states’ presidential votes. That in turn was supposed to trigger a constitutional crisis, which was supposed to have allowed Donald Trump to remain president. Astonishingly, 147 Republicans did in fact vote to reject at least some electors; even after the Capitol riot, which one might have expected to taint the whole enterprise.

In retrospect, we were lucky that Republicans didn’t control both houses of Congress at the time. If they had, it might have been possible for them to generate enough votes to block certification of Joe Biden’s election by using the 1887 law.

It’s hard to fix a statutory loophole like this one, because the problem isn’t the language of the statute so much as Republicans’ willingness to ignore that language. A draft version of the reform bill introduced by senators Angus King, Dick Durbin and Amy Klobuchar takes a smart approach.

The draft bill drastically narrows down the grounds for objection to the electors. It says that the objection may say either that the certificate of identification sent in by a secretary of state is not in fact the valid certificate; or that a named specific elector is not permitted by the Constitution. These restrictions don’t make it absolutely impossible for irresponsible members of Congress to cast unjustified votes against certification. But they do make it substantially harder.

Then, to make the assurance double sure, the draft bill requires that three-fifths of both houses of Congress vote against certifying states’ slates. Under current law, a bare majority of both houses is all that’s required.

Raising the threshold required to block electoral results protects against the possibility of an election steal carried out by a party with a narrow margin in Congress. It is imperfect, to be sure. Historically, partisan majorities in both houses have sometimes exceeded three-fifths. But those moments are far and few between. The higher threshold is perhaps the best possible solution right now.

Another anomaly addressed by the proposed reform bill is to make it explicit that the vice president does not have the power to reject electoral slates on his or her own. To his credit, then Vice President Mike Pence said correctly that he did not have the power under the 1887 law. But Trump insisted that Pence did, and a future vice president might not be able or willing to resist presidential pressure.

The new law addresses this problem in two ways. It says that the presiding officer in the Senate does not have the authority to resolve disputes about the validity of electors. And it adds that a vice president who either is running for president or vice president must be recused from presiding over the whole process.

The recusal is a much needed and long overdue fix. Thomas Jefferson, who was the sitting vice president at the time of the 1800 election and also a candidate for president in the election, would have benefited from such a rule. He ended up presiding over vote-counting in the Senate, which turned out to be historically controversial in part because of uncertainty about Georgia’s slate.

The fixes don’t end there. The draft bill also makes it explicit that states cannot appoint electors after Election Day. That provision is intended to stop state legislatures from trying to overturn the results of the popular election by invalidating the vote and substituting their own preferences.

The Constitution gives each state the authority to decide how its presidential electors will be chosen. But that power should not extend to states choosing one method, namely popular election, and then substituting a different method if they don’t like the results. Although this provision could conceivably be subject to constitutional challenge, on the theory that the states’ authority must be absolute, it seems more likely than not that the courts would uphold it.

The upshot is that the Electoral Count Modernization Act goes a substantial distance toward blocking the kind of proposed shenanigans that took place on Jan. 6, 2021. It would send the message to any future would-be protesters or rioters that Congress and the vice president can’t reverse the results of the legitimate popular election.

That would express the will of the voters; and protect their rights.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”