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Image: The Capitol is seen behind the Washington Monument across from the Reflecting Pool at dusk.
The Capitol the day after a pro-Trump mob broke into the building on Jan. 07, 2021.Joe Raedle / Getty Images file

Bill to prevent future coup schemes is poised to become law

In his coup scheme, Trump tried to exploit ambiguities in the Electoral Count Act. Congress strengthened democracy today by reforming the 135-year-old law.

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What’s likely to be the last accomplishment of the current Congress is also one of its biggest. NBC News reported this afternoon on the latest from Capitol Hill.

The House on Friday voted to finalize a massive $1.7 trillion government funding bill, sending it to President Joe Biden and marking the end of two years of Democrats controlling both chambers of Congress. The package contains a major boost to military spending and nearly $45 billion in assistance to Ukraine. It overhauls federal election law by revising the Electoral Count Act of 1887 to try to prevent another Jan. 6. The bill funds a swath of domestic programs as well, averting a shutdown and keeping the government funded through next fall.

The final tally in the House was 225 to 201, with nine Republicans voting in the majority. Democrats overwhelmingly backed the measure, though Rep. Alexandria Ocasio-Cortez of New York voted against it, and Rep. Rashida Tlaib of Michigan voted “present.”

The same legislative package cleared the Senate yesterday, 68 to 29, and the president will soon be signing it into law.

Much of the attention today is likely to focus on the federal spending, which is understandable, but let’s not overlook the significance of the Electoral Count Reform and Presidential Transition Improvement Act, which was attached to the omnibus spending package as a sidecar.

For those who might benefit from a refresher, when John Eastman, the highly controversial Republican lawyer on Donald Trump’s team in the aftermath of the former president’s defeat, wrote an infamous memo intended to help overturn the 2020 results, his strategy focused on a specific task: exploiting ambiguities in the Electoral Count Act of 1887.

The law was passed in the aftermath of a brutally messy election controversy, and it was designed to establish a congressional process for certifying electoral votes. For generations, it was largely treated as a legal afterthought, if it was thought of at all.

All of that changed in dramatic fashion during the Trump era — or more specifically, as the Trump era came to a difficult end — when it became obvious that the antiquated law was in need of an overhaul.

To that end, a bipartisan group — technically, tripartisan given independent Sen. Angus King’s role in helping write the bill — spent months negotiating the terms of Electoral Count Act reforms. Their efforts paid off. Maine’s King this week summarized some of the key elements of the new Electoral Count Reform and Presidential Transition Improvement Act:

  • Clarifying the Role of the Vice President. Affirmatively states that the constitutional role of the Vice President in the counting of electoral votes is ceremonial, with no power to adjudicate conflicts that might arise.
  • Raising the Objection Threshold. Raises the threshold to object to a state’s electors to at least one-fifth of the duly chosen and sworn members of both the House of Representatives and the Senate — up from one member of each chamber.
  • Ensuring a Single, Accurate Slate of Electors. Designates each state’s governor as responsible for submitting a single slate of electors to Congress [and] ensures a state’s executive can’t submit a slate of electors in violation of state and federal law.
  • Expediting Judicial Review. Provides an expedited review process, including a three-judge panel with appeal to the Supreme Court, of certain claims related to a state’s slate of electors.
  • Preventing Moving or Canceling of Elections. Requires “extraordinary and catastrophic” events for a state to move their election, and removes a provision that allows states to declare failed elections.

There’s a school of thought that has suggested such reforms are unnecessary because existing law is clear enough. It’s a fair point. That said, George Conway explained nearly a year ago, “The Twelfth Amendment and the Electoral Count Act of 1887 already make it entirely clear that the Vice President merely opens the envelopes. But sometimes we want to make laws even clearer so that even semiliterate psychopaths have a chance at understanding them.”

As we’ve discussed, it would be an overstatement to see this as a wholesale fix for systemic electoral concerns. The John Lewis Voting Rights Advancement Act, for example, remains necessary, and its goals are not addressed in the legislation.

But negotiators didn’t even try to answer those questions. Rather, as Electoral Count Act reforms came together, it was a more narrowly focused effort, inspired to counter Team Trump’s insurrectionist goals and prevent future coup attempts.

This bill, which is poised to become law, will prevent exactly those kinds of future crises. With this in mind, democracy advocates have reason to celebrate.