The House of Representatives passed legislation to close some ambiguities in the Electoral Count Act of 1887 that make it harder for Trump and his fascist MAGA movement to repeat the failed coup following the 2020 elections.
Every Democrat supported the legislation, called the Presidential Election Reform Act. Every Republican except nine, who will be gone from the next Congress, voted against it.
The legislation, which passed September 22, was co-sponsored by Rep. Liz Cheney, R-Wyo., and Rep. Zoe Lofgren, D-Calif., both members of the January 6 House Select Committee. It’s a recognition that democracy hangs in the balance, and MAGA coup plotters are laying the groundwork to succeed in 2024, where they failed in 2020.
According to Lofgren, the January 6 insurrection violated the Electoral Count Act and the 12th Amendment. But the Act contains some “ambiguities and procedures that invited some mischief.” The fascist insurrectionists sought to seize power by exploiting vulnerabilities in Electors and Elections Clauses of the Constitution, the Electoral College, the Electoral Count Act of 1877, and the 12th Amendment.
So, lawmakers introduced the legislation to close as many loopholes as possible and “to prevent other future unlawful efforts to overturn Presidential elections and to ensure future peaceful transfers of Presidential power.”
But the legislation, if passed, won’t by itself end the threat of another coup. That is particularly so if the GOP-dominated U.S. Supreme Court acts favorably on the “independent legislative doctrine,” which comes before the High Court this session in the case of North Carolina vs. Harper. According to conservative retired federal judge Michael Luttig, who testified before the January 6 Select Committee, 2020 was a mere dry run for 2024 but depended on the doctrine to succeed.
“The cornerstone of the (coup) plan was to have the Supreme Court embrace the little known “independent state legislature” doctrine, which, in turn, would pave the way for exploitation of the Electoral College process and the Electoral Count Act, and finally for Vice President Mike Pence to reject enough swing state electoral votes to overturn the election using Pence’s ceremonial power under the 12th Amendment and award the presidency to Donald Trump,” says Luttig.
The first stage of the coup failed because the Supreme Court, for various reasons, didn’t rule on the legality of the independent legislative doctrine even though several justices were already inclined to support it. So, the insurrectionists turned to exploit the Electoral Count Act.
The House legislation aims to block schemes at the heart of Trump’s coup strategy, including the ability of states to offer “alternative slates of electors,” using the vice president to delay the vote count, and the ability of congressional representatives to object to electors.
The legislation clarifies the purely “ceremonial” role the vice president performs in overseeing the count. Because VP Kamala Harris will lead the electoral vote count in 2024, manipulating the procedure won’t be an issue. But it could be helpful in future elections.
In addition, the legislation prevents the imposition of alternative “slates of electors” that don’t reflect the popular will of voters. The Trump coup plotters tried to get Pence to delay certifying the electoral votes from swing states and then allow Congress to count the fake alternative slates instead, changing the election outcome.
The legislation passed in the House would require one-third of House members and one-third of Senate members to object to a state’s electoral votes. Currently, it only takes one representative and one senator to object.
The bill would require governors to transmit the slate of electors chosen by the state’s popular vote and allows candidates to sue state officials if they tried to appoint a slate of electors not in line with the election results. The law would prevent state legislatures from changing rules and procedures after election day to deny a victory to a candidate they didn’t like.
A similar bill is making its way through the U.S. Senate. That bill, introduced by Sen. Joe Manchin III, D-W.Va., and Sen. Susan Collins, R-Maine, has the support of ten Republicans necessary to bypass the sixty-vote threshold of the filibuster. If passed, the two chambers would have to resolve the differences between the two bills. Congress is not expected to adopt final legislation before the November 8 election, making its fate uncertain.
The legislation only clarifies how votes from the undemocratic Electoral College are processed but won’t do away with the Electoral College itself. The Electoral College is an elitist and racist anachronism imposed by the framers and slavocracy on the Constitution. The ruling class from North and South generally wanted to protect against the power of the popular vote. And the slavocracy sought to ensure its clout because under a popular vote, the one-third of the South made up of enslaved people wouldn’t count. The Electoral College solved both problems.
The GOP knows that changing demographics and politics doom it as a national party. GOP candidates have received a minority of the popular vote in seven of the last eight presidential elections. GOP presidential candidates George W. Bush and Trump received a minority of votes but won because of the Electoral College. They are determined to create an autocracy based on minority rule and cement themselves as a permanently governing regime party.
If adopted, the legislation would not stop GOP legislatures, governors, or state secretaries from rigging the election’s outcome entirely since states still control election administration and procedures. In at least ten states, candidates who supported the Trump coup in 2020 and committed to minority rule are running for secretary of state and state supreme courts. About 60% of voters have candidates on the ballot who maintain the big lie that Trump won the election.
MAGA secretaries of state can oversee voter suppression tactics, purging thousands of legally registered voters, as seen in places like Georgia, Texas, Florida, New Hampshire, and Iowa, take over local election administration as seen in Georgia, and manipulate the final vote count.
The ability of state legislatures to steal an election could be “legalized” if the GOP-dominated U.S. Supreme Court affirms the independent legislative doctrine. If they rule favorably, the decision empowers state bodies to overturn the popular will and gives them preeminence over federal election law. MAGA state legislatures could legally violate federal election law, disenfranchise voters, determine how votes are counted, and send fake elector slates if the GOP candidate doesn’t win.
“The nightmare scenario is that a legislature, displeased with how an election official on the ground has interpreted her state’s election laws, would invoke the theory as a pretext to refuse to certify the results of a presidential election and instead select its own slate of electors,” stated the Brenan Center for Justice. “Indeed, this isn’t far from the plan attempted by Trump allies following his loss in the 2020 election. And, according to Luttig, the theory is a part of the “’Republican blueprint to steal the 2024 election.’”
Passing some legislation to strengthen democratic procedures, no matter how limited, is an urgent matter. If, as many expect, the GOP wins a House majority in the November 8 election, no new voting and electoral reforms will pass, and a GOP House majority will then be in place to aid and abet a coup attempt in 2024.
On the other hand, electing Democratic governors, secretaries of state, and state legislatures and reelecting Democratic majorities in the House and Senate, including an anti-filibuster majority in the U.S. Senate, would block the next fascist coup attempt.
A victory of this magnitude could allow for far-reaching voter protection and election administration reforms to meet the looming threat to democracy. Such legislation could include the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act, which creates fair congressional redistricting, eliminates extreme partisan gerrymandering, and perhaps even legislation to officially make the District of Columbia a state.
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