The complex Electoral College has led American democracy down a fraught presidential path many times: in 1800, 1876, 2000, 2016 and most memorably on January 6, 2021. This was the first time the peaceful transfer of power was ever broken by an outgoing president desperate to change his loser status. In this Congress Report, congressional expert and Washington journalist Jamie Stiehm, discusses the Electoral Count Act of 1887 and recent debates following the January 6 riots.
In January 2022, former president Donald Trump just made it explicit: he admitted the January 6 storming the Capitol was to pressure Vice President Mike Pence to “overturn” the election. Pence was inside the Senate chamber that day, doing his duty in the congressional certification of the presidential election. As Pence presided over the Senate, House speaker Nancy Pelosi (D-Ca.) performed the same role in the House of Representatives.
The day did not go according to Trump’s plan.
Mob violence left scars on 140 police officers and all who witnessed its sound and fury. The plot also exposed serious flaws in the law governing the process of tallying up state electoral vote counts for president. This ritual is enshrined in custom and law, always set for the first Wednesday in January.
Under ordinary circumstances, Joseph R. Biden would be certified the winner, and that would be that, in a snap. But after the ritual procedure came under deadly siege, came bipartisan calls to reform the Electoral Count Act of 1887.
The armed mob attack on the Capitol on January 6, 2021, incited or invited by then president Trump, was deliberately timed to disrupt the constitutional ritual, the “certification” of each state’s electoral votes, in turn.
Thus, it was no accident that tens of thousands of Trump supporters descended on Congress on the very day that both chambers, House and Senate, convened in session. Each was full of lawmakers and congressional leaders. Vice President Pence was in the head chair, in his ceremonial role as president of the Senate. Also, by constitutional custom, the new president would be sworn in two weeks later, on January 20.
The January 6 crisis revealed bleeding holes in the old Electoral College reform of 1887, which is current law. Ironically, that confusing statute was written to respond another presidential election crisis, which led to the infamous “Compromise of 1877.”
After a deadlocked presidential race between Democrat Samuel Tilden and Republican Rutherford B. Hayes. The hard bargain struck meant the declared winner, Hayes, actually lost the popular vote to Tilden. In arguably the dirtiest deal in American history, now lost in shadows, Hayes agreed to end the post–Civil War program of Reconstruction, removing Union military garrisons to enforce racial protections in the defeated Southern states. That bitter turning point is likely far better known among Black Americans today than most whites.
The January 6 plot to undermine the 2020 election failed, but not by much. From the start, it was clear that the certification ritual was open to delay, all day into night if House and Senate members challenged certain state results, one by one.
Under the current 1887 law, all it takes is one senator and one House member to challenge a state’s reported result. More than 150 Republican lawmakers, mostly in the House, were ready and prepared to do just that. Senators who planned to challenge key state results included Josh Hawley (R-Mo.) and Ted Cruz (R-Texas).
Thus, the certification of the Electoral College count, of all fifty states, was expected to be longer and more contentious than usual. But nobody knew what was coming down the National Mall like lightning, soon after a Trump rally. The counting began at 1 p.m. An hour passed that tense afternoon.
By 2 p.m., the Capitol Rotunda had been breached and an unruly mob was rushing the terrace steps, breaking glass, scaling marble walls, wielding flags, weapons, and bear spray to break up the old ritual. The anger within the heart of government was unlike anything ever seen in the annals of American history—not even in the Civil War. I was in the House chamber and witnessed the shocking spectacle.
Much depended upon coercing Pence, with gavel in hand in the Senate chamber, to throw out just enough state results to change the outcome. Though Biden won the popular vote by 7 million, a margin of 50,000 separated winner and loser in the arcane Electoral College count. Small states play an outsized role in the Electoral College, as they do in the Senate, which allots two senators to each state, regardless of size.
Phoning allies inside the Capitol during the swarming attack, Trump was keeping tabs on his Vice President in real time, up to the moment the hundred senators had to run for their lives into a secret hiding place, where they stayed for hours. House members (along with staff and press) also hurried down a secret staircase and went into lockdown.
To his credit, Pence stood his ground and refused to follow Trump’s script of overturning the election, despite the calls to hang him from the gathering storm outside. He and Speaker Pelosi, second and third in line to the presidency, barely escaped grave danger.
But the treacherous scenario was such a close call that a clear consensus is going around Congress. Senate Democratic leader Chuck Schumer of New York and Republican leader Mitch McConnell of Kentucky agree that reforming the 1887 statute is “worth discussing” in the evenly divided Senate. A bipartisan group of senators met to discuss clarifying and updating the statute, written in 19th century prose and not suited to 21st century eyes.
One way to change the law is to require more members of Congress to register an objection to debate a state result, such as fifty House members and ten senators, constitution scholars suggest. Democrats raised the stakes, proposing the bar for objection to be raised to one third of each chamber.
But perhaps the root problem is the blurry lines between states and Congress in the Electoral Count Act. Oddly, the highest federal election, for president, was intended to be solely the province of the states. This is powerful evidence of how much stock the constitution framers gave to the states and its chosen electors.
To help avert another Capitol confrontation or coup, another fix could be to spell out in a new law that when Congress opens the votes sent by the states, Congress has no power to alter the result, state by state.
Critically important, new legislation could likely specify the vice president cannot change individual counts—or the final Electoral Count.
Ambiguities in the 1887 law are long overdue to be clarified, scholars say, because Trump exploited areas of doubt to rile up thousands of supporters in the belief that the election was “stolen.” Travelers came from all points for the first Wednesday in January, the date set forth in law.
The question remains whether textual changes in the Electoral Count Act can prevent or lessen the impact of raging division in the body politic, or check mischief at the state secretary of state level.
The election of 1800, in which Thomas Jefferson edged out the younger star Aaron Burr, was thrown into the House for numerous rounds because it was so close. The tied election of 1876 caused a near-riot in the “People’s House.” The 2000 Bush versus Gore election was decided by the Supreme Court, in a 5–4 ruling. Democrat Albert Gore, like Hillary Clinton in 2016, lost his election, though they both won the popular vote.
Each election drama took a toll on the populace at the time. In our own time, Americans have seen three rocky elections since 2000 that shook swaths of voters to the core.
Political violence is hard to accept in the citadel of the world’s oldest democracy. So is the shared experience of siding with the people’s popular vote yet losing in the sacrosanct Electoral College.
The framers of the constitution in 1787 took great trouble to devise the way that states would elect the president. They also required the Electoral College electors to meet in person in December in the Capitol. A broad, restless, urban, and modern electorate—women and men, people of color, with or without property—was the last thing on their mind.
In Philadelphia that year, authors James Madison, Alexander Hamilton and other constitution framers designed a weighted presidential election system where the states could thwart and defeat “We the People”—the first line in the parchment document. The tension between counting the states and counting the votes (one person, one vote) has become all too apparent.
The Electoral Count of 1887 is bound to be adjusted after the events of January 6. However, the structure of the state-centered Electoral College is not subject to change anytime soon, even if America has outgrown it.
For more on the history of the Election Count Act of 1887, see the Counting the Electoral Vote article.