Just over a year ago, former President Donald Trump pressured then-Vice President Mike Pence to break his oath to the Constitution, overturn the Electoral College results, and keep him in power. At the same time, Trump’s supporters launched an attack on the U.S. Capitol while the Electoral College votes were being counted. As a result, America failed to achieve a peaceful transfer of power for the first time since Reconstruction.
The weakness Trump sought to exploit was a law passed in 1887: the Electoral Count Act. Trump and his allies believed they could use this bit of arcana to throw out the 2020 election results by having the vice president exploit an ambiguous law provision which, they believed, would allow him to simply refuse to tally the electoral votes. The plan was for Pence to declare he — as presiding officer of the vote count — had the authority to reject certified Joe Biden electors in favor of Trump electors. It is difficult to imagine how far-reaching the resulting constitutional crisis would have been.
The Electoral Count Act — written in response to another constitutional crisis, the disputed election of 1876 — tried to establish procedures for Electoral College vote tallying and certification. But while the law was useful for the specific problems of the late 19th century, the ensuing years have exposed its weaknesses: namely, that it is astonishingly vague in critical areas, including the role of the vice president.
Trump and his allies saw the statute’s ambiguities and realized that they could use them to hack what is supposed to be a ceremonial process of counting votes. It almost worked in 2020. It might well succeed in 2024.
That’s why Congress must close the law’s dangerous loopholes. And reforming the Electoral Count Act will benefit Republicans and Democrats alike. If Trump sought to exploit these weaknesses to upend the transfer of power, a future Democratic candidate could do the same.
Most of the time, useless or outdated laws can simply be ignored and left on the books. But the Electoral Count Act needs reform because of the unnecessary confusion and opportunities it creates for malicious actors to subvert presidential elections.
As various experts and groups have explained, lawmakers can and should improve the law. For instance, they can raise the threshold required to trigger an objection to more than simply one member of each house of Congress. Most importantly, they can codify exactly what the vice president’s role is in the tallying process. Legal ambiguity is a temptation to mischief. Congress should also establish clear processes for resolving legitimate disputes and issues. Don’t leave this as a question to be settled only once we’ve hit a crisis point.
As a former member of Congress, I am encouraged to see that some U.S. Senate Democrats and Republicans are treating this issue with the gravity and urgency it deserves. Members of both parties should work together to reinforce key constitutional guardrails ahead of 2024. At least 14 senators, including Sens. Ben Sasse, Thom Tillis, Joe Manchin and Kyrsten Sinema, reportedly are working through the law with a fine-toothed comb.
But what comes next will be the hard part. As I saw during my tenure representing Hawaii in Washington, coming up with the best plans is easy compared with the negotiations required to implement them. Specific provisions and proposals will be debated and rewritten. But all Americans should support this group of dedicated public servants. And we should resist the Trump faction’s ongoing attempts to distract and divide as it continues its campaign against the rule of law and our democratic traditions.
American democracy has always been about more than one person. Reforming the Electoral Count Act will ensure that remains the case and that the power to choose our leaders resides in the only place it ever should: with the people.
Charles Djou represented Hawaii’s 1st Congressional District (2010-11) and is an advisory board member for Republicans for Voting Rights.
