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Following months of bipartisan negotiations, lawmakers agreed on an important overhaul of the Electoral Count Act that will strengthen the system against future attacks and possible mischief. The challenge was figuring out how to pass it.
This week, Congress is expected to approve a $1.7 trillion omnibus spending package, and to the relief of reformers, the Electoral Count Act overhaul will be included in the legislation. It might pass the Senate as early as today.
Donald Trump, oddly enough, sees this as some kind of proof that some of his outlandish post-defeat claims were right.
In a trio of missives by way of his social media platform, the former president complained bitterly about what reality-based observers said about then-Vice President Mike Pence's legal authority. “They said the Vice President has ‘absolutely no choice,’ it was carved in ‘steel,’” Trump wrote, “but if he has no choice, why are they changing the law saying he has no choice?” He added:
“Simply put, it is because the Vice President did have a choice.... In other words, John Eastman and others were correct in stating that the Vice President of the United States had the right to do what should have been done. The only reason this change is being promulgated is to reform The Electoral Count Act so that the VP cannot do what they powerfully said he couldn’t do, but if it couldn’t be done, why are they making this law change? The whole thing is one big Scam!”
It’s really not.
Let’s briefly review for those who may benefit from a refresher. When John Eastman, the highly controversial Republican lawyer on 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 prevent future coup attempts.
To that end, Democrats and Republicans struck a deal on the Presidential Election Reform Act, which appears poised to become law. As a recent NBC News report explained, it would “remove any doubt that the vice president’s role in counting Electoral College votes is simply ministerial. It would lift the threshold for members of Congress to force a vote on discounting presidential electors from just one member of the House and the Senate each to one-third of both chambers. And it would require governors to send electors to Congress for the candidate who won, based on state law set before Election Day, which cannot be retroactively changed.”
Circling back to our earlier coverage, Trump’s perspective is rooted in ideas that are difficult to take seriously. As the Republican sees it, experts said Pence couldn’t overturn election results, but if Congress now feels the need to reform the process, that must prove that the experts were wrong, and Pence could’ve handed Trump illegitimate power.
But that’s foolish. 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.”
The former president would apparently prefer to leave potential ambiguities intact, in order to protect the possibility of future electoral chaos. Lawmakers are poised to thwart him.