McConnell could avert another Jan. 6

Though the goal of the protestors to overturn the 2020 presidential election results failed, they set a dangerous precedent.



September 15, 2021 - 10:14 AM

Congress staffers barricade themselves after Trump supporters stormed inside the U.S. Capitol in Washington, D.C. on Jan. 6, 2021. Photo by (Olivier Douliery/AFP/Getty Images/TNS)

This weekend, supporters of former President Donald Trump plan to march on Washington in a show of support for the rioters who stormed the Capitol on Jan. 6 and now face federal prosecution.

“We’re going to push back on the phony narrative that there was an insurrection,” one of the organizers explained.

In the rioters’ telling, they invaded the Capitol with baseball bats and bear spray merely to ask Congress and then-Vice President Mike Pence to stop an election they believed to be fraudulent.

Trump had told them that was how the system worked.

“The Vice President has the power to reject fraudulently chosen electors,” the soon-to-be-ex-president had tweeted.

That was a delusion — or, more likely, a deliberate misreading of the law. Pence wisely ignored his boss’s legal advice.

In this screenshot taken from a webcast, Sen. Josh Hawley, R-Mo., speaks against ratifying the 2020 presidential election during a Senate debate at the U.S. Capitol on Jan. 6, 2021 in Washington, D.C. Photo by ( Images/TNS)

But that didn’t stop Republican Sens. Ted Cruz and Josh Hawley and 138 House Republicans from trying to block the electoral votes of Arizona and Pennsylvania, two swing states Joe Biden won.

The protests failed, but they left a dangerous precedent. The next time one side doesn’t like the outcome of an election, its most zealous members may well demand that Congress or the vice president step in and reject the votes.

With one new wrinkle: When the votes are tallied after the 2024 election, the vice president in the chair will presumably be Democrat Kamala Harris. 

That’s a scenario that ought to worry Republicans as well as Democrats. After all, Republicans often deny that their party has a monopoly on dangerous extremists.

Luckily for both parties, this is one problem Congress actually could solve — or at least greatly diminish. All that’s needed is for the House and Senate to revise their rules for counting electoral votes, most of which come from an 1887 law called the Electoral Count Act. 

The statute is a muddled, antiquated mess.

It says Congress is required to accept electoral votes as long as they are “regularly given” — but it’s not clear what those two words mean, so members of Congress can claim they mean almost anything.

It says Congress must consider rejecting a state’s electoral votes if as few as one senator and one House member demand it.

And there’s still the confusion sown by Trump over the role of the vice president, a presiding officer whose name is often on the ballots being counted.

Last month, a bipartisan panel proposed a list of changes to the 1887 law. They would mostly clarify what the majority of legal scholars — and most members of Congress — thought the statute intended all along.

The proposed clarifications would spell out the legitimate grounds for objecting to a state’s electoral votes.