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We the People: An 1887 law inspired the Jan. 6 assault. Some legislators think it’s time to update it

UPDATED: Fri., Jan. 14, 2022

Speaker of the House Nancy Pelosi, D-Calif., and then-Vice President Mike Pence talk on Jan. 6, 2021, before a joint session of the House and Senate to count the Electoral College votes cast in the 2020 election at the Capitol in Washington.  (J. Scott Applewhite)
Speaker of the House Nancy Pelosi, D-Calif., and then-Vice President Mike Pence talk on Jan. 6, 2021, before a joint session of the House and Senate to count the Electoral College votes cast in the 2020 election at the Capitol in Washington. (J. Scott Applewhite)

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: Name one power of the U.S. Congress.

Most of the powers accorded to Congress by the U.S. Constitution are clear. For instance, only federal lawmakers can pass laws, approve treaties or declare war.

But can Congress choose the next president of the United States?

The assault on the Capitol by supporters of former President Donald Trump on Jan. 6, 2021, showed that one of Congress’s roles needs to be better defined. On that day, lawmakers gathered at the Capitol to conduct what until then had been an uncontroversial formality: counting the results of the Electoral College, the system by which the United States chooses its next president.

After previous elections, members of Congress had convened to certify the Electoral College results with little fanfare, usually long after the losing presidential candidate had conceded. President Joe Biden had won 306 electoral votes to Trump’s 232, but in the days leading up to Jan. 6, Trump’s legal team argued that an 1887 law allowed then-Vice President Mike Pence – who as president of the Senate would preside over the count – to reject it and instead let Congress choose the next president.

In a memo, Trump lawyer John Eastman proposed a strategy that relied on ambiguity in the Electoral Count Act of 1887: Pence would reject the results from seven states where the Trump campaign falsely insisted massive voter fraud had occurred. That would leave neither candidate with the 270 electoral votes needed for a majority. Then Pence would invoke the 12th amendment, which in such a situation empowers the House of Representatives to choose the next president with each state’s delegation having a single vote, controlled by the party that holds the majority of a state’s delegation.

With Republicans controlling 26 of the 50 delegations, Eastman argued, those GOP lawmakers could make Trump president.

Not all Republicans supported the idea, with Wyoming Rep. Liz Cheney writing in her own memo such a move would “set an exceptionally dangerous precedent, threatening to steal states’ explicit constitutional responsibility for choosing the President and bestowing it instead on Congress.”

Ultimately, Pence refused to go through with Eastman’s plan, saying later he was “proud” of that decision and declaring there is “almost no idea more un-American than the notion that any one person could choose the American president.”

But as the United States marked the somber anniversary of the Capitol riot last week, and despite their opposition to broader election reform proposals by Democrats, some congressional Republicans said they are open to reforming the Electoral Count Act to ensure no such scenario could happen again.

On Wednesday, Senate GOP Leader Mitch McConnell of Kentucky told Politico the Electoral Count Act “obviously has some flaws” and signaled he was open to reforming it.

Whether a bipartisan bill to do that is possible may depend on Democrats, who are pushing for wide-ranging election reforms to make voting easier and view McConnell’s support for a narrower reform bill with suspicion. On Thursday, Senate Majority Leader Chuck Schumer, D-N.Y., called McConnell’s offer “unacceptably insufficient and even offensive.”

While reforming the 1887 law could avoid a repeat of the exact same scenario that played out last January, Democrats – and some Republicans like Cheney – argue that the bigger threat to the U.S. election system comes from the ongoing efforts of Trump and his allies to sow doubts about the 2020 vote.

Orion Donovan-Smith's reporting for The Spokesman-Review is funded in part by Report for America and by members of the Spokane community. This story can be republished by other organizations for free under a Creative Commons license. For more information on this, please contact our newspaper’s managing editor.

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