Predictably, much discussion surrounding the midterm elections has focused on the insurrection of Jan. 6, 2021. A brief listen to conservative media is likely to reveal assertions that it wasn’t really an insurrection or that it wasn’t violent or that then-President Donald Trump did not foment it.
Each of those claims is disconnected from the reality of a day that will live in infamy. Trump told supporters — knowing that some were armed — “if you don’t fight like hell, you’re not going to have a country anymore”; rioters stormed a barricaded U.S. Capitol; five people died during the attack. And the House select committee examining those events has laid out the facts in clinical, dispassionate detail.
In many ways, the congressional midterms are a referendum on the truth of Jan. 6. But regardless of how the midterms play out and regardless of which party or parties will control Congress in January, lawmakers this year must update the antiquated 1887 Electoral Count Act that helped hold open the door for an attempted coup.
Preventing another coup attempt should be the focus of the lame-duck session following the midterms. Bills have been introduced in both the House and the Senate to clarify this important law, drawing bipartisan support in each chamber.
The House bill passed in September, with nine Republicans joining Democrats in support, including Rep. Jaime Herrera Beutler, R-Battle Ground. A Senate version of the bill has advanced out of committee with substantial bipartisan support, demonstrating that even in a time of deep political divisions, defending democracy should know no political boundaries.
At the core of the legislation is the misbegotten notion that the vice president may reject electoral counts from selected states. Trump promoted this absurdity in urging Mike Pence to wrest election results away from the people. Pence instead sided with the Constitution, correctly viewing the vice president’s role in the electoral count as purely ceremonial.
While that view is supported by decades of practice and by legal scholars, if an act of Congress is necessary to clarify it, then Congress must indeed act.
Other provisions in the bills address the dangerous ease with which members of Congress may delay the electoral count, and ensure that courts could review whether a governor has appropriately selected a state’s electors. We now know that Trump and his acolytes engaged in a cockamamie scheme to install fake electors in seven states.
We also now know, with clarity, that Jan. 6 was merely the culmination of a monthslong, multifaceted effort to undermine democracy and reject the results of a free and fair election. The ambiguity of the Electoral Count Act assisted in the effort. As an analysis from the National Task Force on Election Crises surmised, the law is “extraordinarily complex” and “far from the model of statutory drafting.”
Following the midterms, the lame-duck Congress will have a busy schedule. There are must-pass budget and defense bills that will require negotiation and compromise; there are pending bills to protect the right to same-sex marriage and to ban lawmakers from trading stocks. And the specter of a new-look Congress in January will be in the air.
But protecting the very foundation of our democratic system is essential. Never before 2021 had our nation been faced with an attempted coup by an outgoing president. Helping to ensure that it doesn’t happen again would be a gift from Congress to the American people.
