In the days leading up to Jan. 6, 2021, Trump lawyer John Eastman sent a memo to Republican Utah Sen. Mike Lee outlining how to stop the joint session of Congress from certifying votes from the Electoral College.
“There is very solid legal authority, and historical precedent, for the view that the President of the Senate [Mike Pence] does the counting …” Eastman wrote, “and all the Members of Congress can do is watch.”
He’s referring to what was until then an obscure election law from 1887, written 10 years after another hotly contested presidential election between Rutherford B. Hayes and Samuel Tilden. The Electoral Count Act (ECA) is a federal statute enacted to instruct lawmakers on how to certify votes in a presidential election.
Since Eastman’s plot was revealed in Bob Woodward and Robert Costa’s book “Peril” in mid-2021, pundits, academics and lawmakers alike have warned that the act as it stands leaves too much room to derail the 2024 election. Pence didn’t go along with Eastman’s plan, but he could have.
South Dakota Sen. John Thune, a top Republican, told reporters recently there was “some interest” among his party in cooperating with Democrats to reform the legislation. Senate Minority Leader Mitch McConnell of Kentucky also hinted at making changes to the law, but Senate Majority Leader Chuck Schumer of New York later rebuked his offer as “unacceptably inefficient and even offensive,” as Republicans have repeatedly rejected the Democrats’ other efforts at voting rights reform.
Sen. Angus King, a Maine Independent, is drafting a revision to the law, which he plans to introduce in a few weeks. Sens. Amy Klobuchar of Minnesota and Dick Durbin of Illinois are expected co-signers. And based on McConnell’s suggestion, the bill may gain support from the right.
Whether McConnell’s proposal comes with strings remains to be seen, but there seems to be consensus across the aisle: The ECA should be updated. The question, however, is how.
It’s a rare moment of bipartisan consensus on Capitol Hill: Both sides agree that the bill should be reformed. The question is how — and if they can get enough votes to pass it.
How the law came to be
The Electoral Count Act was drawn up in response to the bitterly contested election between incumbent President Rutherford B. Hayes and Democrat Samuel Tilden in 1876. It was a tumultuous time in U.S. history, a period between the Civil War and the end of Reconstruction, when there were high levels of political polarization, rampant election fraud and political violence.
“Though it seems random and arcane, the act is part of a remaking of American democracy and voting rights in the late 19th century,” Jon Grinspan, author of “The Age of Acrimony: How Americans Fought to Fix Their Democracy, 1865-1915,” told Grid, “and 1887 is kind of the forgotten turning point.”
At the time, politics were the center of social life. Elections held in the late 19th century — also known as the Gilded Age — saw historically high voter turnout and civic engagement. Ballot boxes were placed in saloons, people of all stripes argued about politics in streetcars and on steamboats, and many citizens canvassed for their party. The 1876 election saw the highest level of voter turnout the U.S. ever saw, with 82 percent of registered voters turning up at the ballot box. (By contrast, 67 percent of registered voters turned up in 2020, also something of a high-water mark.)
This high engagement, however, didn’t lead to smoother politics: Many political arguments broke into violence. “There’s a lot of open voter suppression,” Grinspan explained. “And not like low-level voter suppression, but murdering people who try to vote, burning ballot boxes, things you wouldn’t expect to see in a functional democracy.”
In the aftermath of the Civil War and the midst of an economic depression, voters saw the race between Hayes and Tilden as life or death.
“It’s almost like this one big election is going to decide everything,” Grinspan said.
The 1876 election also brought a dormant problem to the forefront: There were no clear rules for how to decide a close election. Four states — Florida, Louisiana, South Carolina and Oregon — sent multiple vote counts to Washington. By the end of election night, 20 electoral votes were still undecided, triggering a mad dash from both parties to steal the race. Americans wouldn’t find out who their next president would be for another four months.
“Until 2020, that was clearly the most disputed presidential election we’ve ever had,” said Ned Foley, a professor of constitutional and election law at Ohio State University. It didn’t end there: The next few elections were similarly close and contentious, so Congress spent the next decade establishing safeguards to mellow the democratic process.
“The law has numerous provisions on how to deal with objections to a state’s votes, as well as what to do if a state sends competing slates of electoral votes,” Joshua Douglas, a professor with a specialty in election law at the University of Kentucky, told Grid.
The bill says that after states send their vote tallies to Washington, Congress counts each state’s electoral votes to discern who won the presidency. Beyond those instructions, however, the details get murky. “Those provisions can be read as contradicting each other in places,” Douglas explained. “And the language itself is just difficult to follow.”
The Electoral Count Act may have been designed to settle disputed elections, but it also leaves room for interpretation. Due to the combustible political atmosphere of the Gilded Age, congressional Republicans made a series of compromises to appease Democrats, like pulling federal troops out of the South and stopping Reconstruction in its tracks. It also inspired the vague language of the ECA, so any lawmaker can interpret it in ways advantageous to their party.
As a result, the language is archaic and written in an intentionally vague way to bypass the stark ideological differences of the era. “They knew it was imperfect and papered over some difficult issues with ambiguity,” Foley said, “but they thought something was better than nothing, and it’s never really been fixed.”
This is where Eastman saw an opening to concoct his own interpretation of the law.
What Eastman tried
Eastman’s memo was only one of a series of attempts from Donald Trump’s camp to control election results.
“What we saw in 2020 was conservatives, including officials working for then-President Trump, advancing wacky theories about how Congress could override the results of the election,” Alex Tausanovitch, campaign finance and electoral reform director of the Center for American Progress, told Grid.
But it was among the most notable, partly due to what experts argue was his erroneous interpretation of the ECA. For example, Eastman claimed in the memo that seven states sent multiple slates of electors to Pence to claim victory for Trump. “There weren’t,” Smith said. Pro-Trump groups forged electoral certificates in Arizona, Georgia, Michigan, New Mexico, Nevada, Pennsylvania and Wisconsin and submitted them to Congress.
Trump and his team also pressed Republican-leaning legislatures in Pennsylvania and Michigan, among other states, to overturn the state’s popular vote, so at least 13 Republican senators planned to support objections in up to six states.
Only Arizona and Pennsylvania saw disputes, despite conservative pushback following the Jan. 6 insurrection. After the joint session returned from its emergency recess, Texas Sen. Ted Cruz objected to Arizona’s vote tally while Missouri Sen. Josh Hawley objected to Pennsylvania’s. The Senate struck down the objections after two hours of debate with a 6-to-93 vote on Arizona and a 7-to-92 vote on Pennsylvania.
It’s not uncommon for members of Congress to object to election results during the vote certification process. Democrats like Reps. Pramila Jayapal of Washington and Sheila Jackson Lee of Texas, for example, objected to Trump’s victory in 2016. But Cruz and Hawley’s objections made headlines because they coincided with the riots. Hawley made his infamous fist pump in support of the rioters only hours before.
In the end, Pence rejected Eastman’s proposal, and his chief of staff later went on the record denouncing the memo as “boneheaded analysis.”
The ECA states that the vice president presides and opens the ballots to be counted, but it doesn’t clarify who counts them. Eastman took this to mean that Pence himself counts the ballots, granting him the power to declare vote counts invalid. “The fact is that the Constitution assigns this power to the Vice President as the ultimate arbiter,” he wrote.
This is fiction, experts say. As Derek Muller, an election law professor at the University of Iowa, notes in an election law blog, Congress has appointed tellers to count electoral votes since 1793. Those tellers — lawmakers appointed by their party leaders — then tally the votes and deliver them to the president of the Senate, whose only role is to read the votes out loud. But the fact that the ECA itself doesn’t explain this in detail means that it’s open to interpretation.
The role Congress plays in the certification process is similarly unclear. “There’s been this interpretation of it in some circles that Congress has the authority to go back and sort of second-guess the state’s certification of its electors,” Smith said. But the purpose of Congress is “truly ceremonial.”
Eastman’s memo highlights a critical hole in the ECA: what to do when there are legitimate disputes in vote tallies. “The difficult question is, what happens if there are two sets of electors sent in, proven to be electors from the state?” Smith said. “That was not the issue in 2000 or 2004 or 2016 or 2020. And Eastman kind of claims there were in his memo, but there weren’t. Mike Pence didn’t have two sets of electors sitting in front of him.” That doesn’t mean it couldn’t happen in the future, the way it did in 1876.
What would reform look like?
We don’t know what specific provisions King and his fellow Democrats will put in their reform bill, but there are clear patches in the act that need mending.
“ECA reform has to make clear that the vice president’s role is limited,” Tausanovitch said, “and there should be a clear process for how any bona fide concern about electoral votes should be resolved.”
The statute also makes it too easy to derail the count with debates triggered by a single objection.
“I think you need to make it a little bit harder to object,” Smith said. The act allows a minimum of one member of the House and one member of the Senate to object to a slate of electors and stall the vote certification. “So, you can have one crank in the House, and away you go.”
Democrats are hesitant to endorse such concrete changes to the ECA. Many openly worry that state-level interference would be enough to overturn the 2024 election, and they think Vice President Kamala Harris might need to block attempts to do so. But most agree that reforming the statute itself isn’t enough.
Democrats would prefer to pair an ECA reform with the Freedom to Vote Act and the John R. Lewis Voting Rights Advancement Act, so the country could see fairer, accessible elections leading up to the midterms and 2024.
In a statement provided to Grid, King said that his legislation is “no substitute” for the other voting rights bills, “but if enacted, it can help reinforce the will of the people and ensure that voters have the final say in choosing their leaders.”
However, they look dead in the water: Schumer may have managed to usher them into a debate this week, but Republicans blocked the bills for the fifth time since they were introduced. Reform to the ECA could stall with it, leaving Congress open for Jan. 6 2.0.