The Electoral Count Act of 1887 (ECA) took center stage at Thursday’s Jan. 6 hearing as House Select Committee members homed in on Trump adviser John Eastman — the lawyer who included the ECA as part of his six-point plan to overturn the 2020 election results.
In the weeks leading up to the siege on the Capitol building, Eastman sent the vice president a memo outlining his plan to overturn the 2020 election results.
Eastman argued that when seven states changed election rules to meet the challenges of the covid-19 pandemic, that qualified as voter fraud. Because Michigan shipped absentee ballots out rather than required voters apply for them, for example, the legitimacy of the state’s vote tally should come under question.
He then asserted that the 12th Amendment granted the “President of the Senate” (then Vice President Mike Pence) sole authority to certify electoral votes, and requested that the vice president invalidate the states’ vote tallies and call them for then-President Donald Trump.
“There is a very solid legal authority, and historical precedent, for the view that the President of the Senate [Pence] does the counting …” Eastman wrote, “and all the Members of Congress can do is watch.”
A number of lawyers and legal analysts argued in the months following that Eastman’s interpretation of the ECA was erroneous and that he was exploiting the statute’s vague language to secure Trump’s reelection.
“This is a statute that’s been on the books for about 135 years,” Genevieve Nadeau, a counsel at the nonpartisan think tank Protect Democracy, told Grid. “With the exception of Bush v. Gore, where it only sort of came into play, it hasn’t really been tested.” She added that since the statute hasn’t gone under a legal microscope the way other aspects of election law have, Trump’s team considered it their “best chance for manufacturing an outcome.”
Retired federal judge J. Michael Luttig agreed with these assessments at Thursday’s hearing.
“It is breathtaking that these arguments even were conceived, let alone entertained by the president of the United States at that perilous moment in history,” Luttig said in his opening statement. Had Pence followed Trump’s plan, “America would immediately have been plunged into what would have been tantamount to a revolution within a paralyzing constitutional crisis.”
Before the panel, Luttig stated that there was “no support whatsoever in either the Constitution of the United States, nor the laws of the United States, for the vice president, frankly ever, to count alternative electoral slates.”
Luttig was called to testify because he’d advised Pence on the matter after Richard Cullen, the vice president’s personal lawyer, contacted the retired judge, seeking legal ammunition against Eastman’s plot.
Greg Jacob, another witness and former Pence counsel, echoed Luttig’s assessment from the bench. “It is unambiguous that the vice president does not have the authority to reject electors,” he told the panel. “There is no mention of rejecting or objecting to electors anywhere in the 12th Amendment.”
Eastman admitted to Jacob that the plan would lose at the Supreme Court “nine to nothing,” according to his testimony.
Back in April, Sens. Joe Manchin, D-W.V., and Susan Collins, R-Maine, who are overseeing a bipartisan group of senators working on reforming the ECA, asked a group of legal scholars for proposals on the best way to do it. They suggested that Congress tighten up the language of the statute, address any uncertainties about who plays what role when votes are being counted and help check efforts by bad-faith actors to invalidate the vote certification process.
“ECA reform should clarify that Congress has an important but limited role in tallying electoral votes, consistent with the best understanding of the Twelfth Amendment and other relevant authorities,” the group wrote in a joint letter published on April 4.
Manchin, Collins and the rest of the group took that advice to heart: On June 8, they reached an agreement for a general framework on how to modernize the statute.
The new language clarifies the vice president’s role during the certification process as purely ceremonial and would allow objections only from 20 percent of each chamber rather than one member.
The next day, on June 9, Collins told reporters that the group feels “a sense of realism” to reform the bill before this fall’s midterm elections present another opportunity for a coup attempt.
Lawmakers must now produce a draft of the new framework and present it to both chambers of Congress for a vote. One senator told PBS News’s Lisa Desjardins that they hope to start the process by August, but a vote before the midterms isn’t likely to happen.