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Fearing a repeat of Jan. 6, Congress eyes changes to electoral count law

Rioters incited by President Donald Trump storm the Capitol building in Washington, Jan. 6, 2021.JASON ANDREW/NYT

WASHINGTON — Members of the select congressional committee investigating the Jan. 6 attack at the Capitol are pressing to overhaul the complex and little-known law that former President Donald Trump and his allies tried to use to overturn the 2020 election, arguing that the ambiguity of the statute puts democracy at risk.

The push to rewrite the Electoral Count Act of 1887 — enacted in the wake of another bitterly disputed presidential election — has taken on new urgency in recent weeks as more details have emerged about the extent of Trump’s plot to exploit its provisions to cling to power.

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Trump and his allies, using a warped interpretation of the law, sought to persuade Vice President Mike Pence to throw out legitimate results when Congress met in a joint session Jan. 6 to conduct its official count of electoral votes.

Pence’s refusal to do so led a mob of Trump’s supporters to chant “Hang Mike Pence” when they stormed the Capitol, delaying the proceedings as lawmakers fled for their lives. Pence and members of Congress ultimately returned and completed the count, rejecting challenges made by loyalists to Trump and formalizing President Joe Biden’s victory.

Had Pence done as Trump wanted — or had enough members of Congress voted to sustain the challenges lodged by Trump’s supporters — the outcome could have been different.

Republicans in Congress have repeatedly blocked efforts by Democrats to alter election laws in the wake of the 2020 crisis, and it is not clear whether a bid to revamp the Electoral Count Act will fare any better. But experts have described the law as “almost unintelligible,” and an overhaul has the support of several leading conservative groups.

The statute, written in the aftermath of the disputed election of 1876 between Republican Rutherford B. Hayes and Democrat Samuel Tilden, has dictated how Congress formalizes elections, mostly without incident, ever since.

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But what unfolded Jan. 6 tested its limits.

Both of the objections by Trump’s allies — who sought to invalidate the electoral votes of Pennsylvania and Arizona — failed in the House, although the vast majority of Republicans supported them. In the months since, it has become clear those challenges were part of a broader strategy.