Last Feb. 4, ABC’s “This Week” anchor George Stephanopoulos asked Sen. JD Vance (R-Ohio) if he had been vice president on Jan. 6, 2021, would he have handled things differently than had Vice President Mike Pence in presiding over the electoral count for president and vice president before the joint session of Congress.
Vance replied: “If I had been vice president, I would have told states like Pennsylvania, Georgia, and so many others, that we need to have multiple slates of electors, and I think the U.S. Congress should have fought over it from there. That is the legitimate way to deal with an election that a lot of folks, including me, think had a lot of problems in 2020.”
I was gobsmacked when I heard that, especially coming from a Yale Law School graduate. Surely, I wondered, they teach constitutional law at Yale? Six months after that interview, on July 15, Trump chose Vance to be his vice presidential running mate.
Pence had been importuned by President Donald Trump numerous times leading up to the joint session not to certify the electors of certain key states he lost, thereby throwing the election to him. Pence refused, fully understanding, as he later testified to a grand jury, that his authority under the Constitution and the Electoral Count Act of 1887 was strictly “ministerial.” His only duty was to announce the electoral votes of each state as their envelopes were opened in alphabetical order.
The joint session convened at 1 p.m., and at 2:30 a violent mob breached the Capitol, sending members and staff scurrying for safety. The protesters disrupted the session after he exhorted them in a rally on the Ellipse to march to the Hill and “fight like hell.” An immediate recess was declared. The bloody melee continued for three hours before Trump finally told the crowd to return home in peace.
The joint session finally reconvened around 9 p.m. Under the law, objections could be raised against any state’s votes if signed by one member of the House and Senate. Objections were filed against the votes of Arizona and Pennsylvania. The two houses retired to their respective chambers to debate the objections for up to five hours each before voting. In both instances, the objections were overwhelmingly rejected by both bodies. It wasn’t until 3:41 a.m. on Jan. 7 that Pence declared Biden the winner.
The main question hanging over Congress after that nightmarish experience was over what had prompted such a traumatic uprising and what, if anything, could Congress do to prevent a recurrence? On June 30, 2021, the House created a select committee to investigate, laying out a multitude of specific instructions, including ascertaining all the relevant facts and circumstances surrounding the incident, to identify its causes and lessons learned, and reporting on its findings and recommendations to prevent such future acts of violence.
Eighteen months later, after extensive hearings, more than 1,000 interviews, subpoenas for relevant documents and referrals to the Justice Department for prosecution, the nine-member select committee issued its 814-page report containing a detailed narrative of what happened, why, and who was responsible. Finally, the report included 11 recommendations for preventing a recurrence of such an outbreak in the future.
As someone who worked for nearly three decades in the House on process, procedures and reform issues, I was especially interested in what, if anything, was being done about improving the actual electoral vote count process and procedures before the next joint session vote count on Jan. 6, 2025. Those recommendations were first on the list. The principal recommendation was to “reaffirm” that a vice president has no authority or discretion to reject an official electoral slate as submitted by a governor of a state.
Related to that were suggestions that the Congress’s counting rules be reformed to conform to its narrow constitutional role under Article II and the Twelfth Amendment of the Constitution; that presidential candidates could sue in federal court to ensure Congress receives a state’s lawful certification; and ensuring that the manner for selecting presidential electors cannot be changed retroactively after the election is over.
The select committee noted that all the recommendations were contained in a bill passed by the House on Sept. 21, 2022, “The Presidential Election Reform Act.”
Meanwhile, the Senate took a slightly different tack by first creating a bipartisan “Electoral Count Working Group” in early 2022, headed-up by Sens. Ben Cardin (D-Md.), Susan Collins (R-Maine), and Joe Manchin (D-W.Va.), who has since left the Democratic Party. The product of their efforts was contained in a bill, the Electoral Count Reform and Presidential Transition Improvement Act of 2022, that was reported by the Senate Committee on Rules and Administration, without a report and without further direct action on the floor.
All of these House and Senate efforts finally came together in a consolidated appropriations bill titled, “The Electoral Reform and Presidential Transition Improvement Act of 2022,” enacted on Dec. 29. The House and Senate concurred on the need to ensure the procedures for the electoral count be unchallengeable and conclusive on the validity of the outcome. The legislation will forestall use of the tactics attempted unsuccessfully in 2021. No doubt, though, creative minds are currently devising new strategies for disruption.
However, lest there be any confusion, the person who will be presiding over the electoral count next Jan. 6 will be Vice President Kamala Harris, who will still be president of the Senate. If former President Donald Trump wins the election, his vice president, JD Vance, will not preside over an electoral count until January 2029.
Don Wolfensberger is a 28-year congressional staff veteran, culminating as chief-of-staff of the House Rules Committee in 1997. He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000), and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).
