The Select Committee to Investigate the January. 6th Attack on the U.S. Capitol began its investigation last year and has conducted nine hearings to date.
Last spring, federal district court Judge
David O. Carter
reviewed evidence submitted by the committee and reached the conclusion that President Trump “launched a campaign to overturn a democratic election, an action unprecedented in American history.” Mr. Trump “more likely than not” violated two criminal statutes by “corruptly attempt[ing] to obstruct the Joint Session of Congress on January 6, 2021,” and “dishonestly conspiring” to do so.
In the committee’s recent hearings, evidence has demonstrated Mr. Trump was fully informed that his plans to overturn the election were illegal. One element of his plan called for Vice President
to refuse to count certain Biden electoral votes, a scheme Mr. Pence has called “un-American.” Mr. Trump knew that scheme would violate both the U.S. Constitution and the Electoral Count Act of 1887.
The committee will have more to say in the months to come about the full extent of Mr. Trump’s plans to overturn the 2020 election, but we also have an obligation to recommend legislation to make sure such an attack never happens again. Evidence from Republican officials in Mr. Trump’s own campaign, his administration’s Justice Department and his White House, and evidence from Republicans throughout the states at issue, has shown conclusively that his allegations of widespread fraud in the 2020 election were false.
Despite this, Mr. Trump continues to make intentionally false election-fraud allegations, claiming that he should be reinstalled as president. And current candidates for key offices—who could themselves try to change the outcome of future elections—also embrace those lies and other groundless conspiracy theories. This raises the prospect of another effort to steal a presidential election, perhaps with another attempt to corrupt Congress’s proceeding to tally electoral votes.
To address this prospect, this week we will propose reforms to the Electoral Count Act to protect the rule of law and ensure that future efforts to attack the integrity of presidential elections can’t succeed. Our proposal will be founded on four fundamental principles:
First, we must reaffirm what the Constitution and existing law already make plain: The vice president (who acts as presiding officer for a joint session of Congress in a presidential election) has no authority or discretion to reject official state electoral slates, to delay the count in any material way, or to issue procedural rulings that have such an effect. The 12th Amendment is straightforward; it simply requires counting: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed.”
Second, if members of Congress have any right to object to electoral slates, the grounds for such objections should be narrow. Congress doesn’t sit as a court of last resort, capable of overruling state and federal judges to alter the electoral outcome. If any objections are allowed during the joint session, grounds should be limited to the explicit constitutional requirements for candidate and elector eligibility and the 12th Amendment’s explicit requirements for elector balloting. Objections would require one-third of each chamber to be entertained and majority votes to be sustained.
Third, governors must transmit lawful election results to Congress; if they fail to fulfill that duty, or another official prevents the lawful results from being transmitted, candidates for the presidency should be able to sue in federal court to ensure that Congress receives the state’s lawful certificate. These suits would occur before Congress counts electoral votes, and should ensure, in all cases where one candidate has the majority of electoral votes, that Congress’s proceeding on Jan. 6 is purely ministerial.
Finally, federal law must make clear that the rules governing an election can’t change after the election has occurred. The Constitution assigns an important duty to state legislatures, to determine the manner in which the states appoint their electors. But this shouldn’t be misread to allow state legislators to change the election rules retroactively to alter the outcome.
Our proposal is intended to preserve the rule of law for all future presidential elections by ensuring that self-interested politicians cannot steal from the people the guarantee that our government derives its power from the consent of the governed. We look forward to working with our colleagues in the House and the Senate toward this goal.
Ms. Cheney, a Wyoming Republican, is vice chair of the Jan. 6 committee. Ms. Lofgren, a California Democrat, is a member of the committee and chair of the House Administration Committee.
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