Reforming the Electoral Count Act requires bipartisan buy-in—Democrats can’t do it alone even with filibuster reform

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

As part of observing the anniversary of the January 6 insurrection, it is fitting that the necessity of reforming the Electoral Count Act is finally getting the attention it deserves. I’ve contributed to that effort, in a co-authored column setting forth a bipartisan basis for revising the ECA. Others have done so as well, including editorials in the Wall Street Journal and Washington Post.

It is encouraging, then, that leading Republicans in the Senate—including Minority Leader Mitch McConnell—have expressed a willingness to work with Democrats on ways to fix the ECA. It is perhaps ironic, then, and disconcertingly so, that some leading Senate Democrats are apparently now balking at the possibility of bipartisan ECA reform. According to news reports, some have suggested a linkage between ECA reform and adoption of the other two major pieces of electoral reform that Democrats are pursing: the Freedom to Vote Act and the John Lewis bill to reinvigorate the Voting Rights Act. The Washington Post, for example, identifies Senator Tim Kaine as one who has “expressed openness to modifying [the ECA], but only in conjunction with other, more thoroughgoing voting rights protections.”

This kind of linkage, in my judgment, would be a serious mistake on the part of Senate Democrats. As the Washington Post’s editorial recognizes, ECA reform is essential whether or not Democrats are able to achieve their other voting rights goals. It seems unlikely that Senate Democrats are sufficiently united to achieve the filibuster reforms necessary to enact their two major election-related bills, but we will soon know the answer given Majority Leader Chuck Schumer’s plan to bring this to a vote by MLK Day. If these voting rights bills remained blocked, Democrats still should pursue ECA reform on a genuinely bilateral basis with Republicans. Not doing so would be like refusing to wear a mask as protection against Covid because a wanted vaccine is not yet available.

Moreover, even if Democrats end up all on board—including Senators Sinema and Manchin—for filibuster reform that enables them to enact their two election-related bills over essentially uniform GOP opposition (with only Senator Murkowksi supporting the John Lewis VRA reform bill, and none supporting the Democrats-only Freedom to Vote Act), it would be dangerously counterproductive for Democrats to use this procedural maneuver to pursue one-party ECA reform without bilateral Republican participation. The reason is that ECA reform cannot work unless both parties are on board. Why? Because a one-sided revised ECA is in danger of being ignored if the other side is in control of the process the next time Congress convenes to count electoral votes.

This point is somewhat technical—but crucial. The constitutional status of the ECA is very much debated. Although I for one believe that Congress has the constitutional authority under the Necessary and Proper Clause to enact a statute to implement the requirement of a special joint session of Congress under the Twelfth Amendment for receiving and counting the electoral votes sent from the states, there are those who take the position that Congress cannot bind itself by statute but instead must operate according to rules adopted by each chamber. Because of this view, for each presidential election, the practice has developed for the House and Senate to adopt concurrent resolutions agreeing for that particular election to follow the procedures of the ECA. These resolutions moot the point, for that particular election, whether or not the ECA is constitutional—because the two chambers of Congress for that year’s special joint session of Congress are operating not just under the statute, but under their specifically self-imposed rule to abide by the terms of the statute on this particular occasion. It’s a belt-and-suspenders approach to the constitutional point relating to this issue of congressional procedure.

But if Democrats tried to impose a unilaterally revised ECA over GOP objection through the use of filibuster reform, what happens if Republicans control even just one house of Congress starting in January of 2025? We can easily anticipate that this chamber would refuse to pass the resolution to abide by the terms of the objectionable ECA. Chaos and crisis would ensue, and the very purpose of ECA reform—to bring clarity and stability to the congressional procedures for counting electoral votes—would be negated. Simply put, ECA reform can work only if it is genuinely bipartisan: both parties agreeing in advance to embrace a set of shared procedures for how the counting of electoral votes is supposed to happen. It’s that shared bipartisan buy-in that enables each chamber of Congress, regardless of which party happens to be in control at the time, to agree to adopt the resolution for that year’s election that accepts the ECA as the basis for proceeding in that particular joint session of Congress.

One could make the much broader argument that electoral reform in general, to be effective, must have bipartisan buy-in. A counterargument that’s often made is to point to the Fifteenth Amendment as an example of one party (Reconstruction Republicans) imposing voting rights over the opposition of the other major party (anti-egalitarian Democrats). Tragically, however, I think the historical lesson of the Fifteenth Amendment is just the opposite. Yes, it was adopted by one party against the wishes of the other, but it quickly became utterly ineffective with the demise of Reconstruction, because the Republican Party alone could not sustain enforcement of the Fifteenth Amendment over the persistent and determined opposition of Democrats in the South. The nullification of the Fifteenth Amendment was so successful that the U.S. Supreme Court in Giles v. Harris, a 1903 decision written by Justice Holmes, said that the federal judiciary would refuse an injunction to remedy the systematic violation of the Fifteenth Amendment by Alabama because the injunction would be ineffective, as the federal courts were powerless to make the state obey the constitutional command. It was only when Congress on a bipartisan basis guaranteed commitment to enforcement of the Fifteenth Amendment, with the enactment of the 1965 Voting Rights Act, that genuine equality of electoral opportunity regardless of race was a realistic possibility. This history, as much as I’d prefer otherwise, offers a cautionary lesson about the capacity of one party to vindicate voting rights over the dug-in opposition of the other major party. But whatever lesson one draws from this history about electoral reform more broadly, the specific point about ECA reform remains true: for the technical reasons concerning the relationship between the ECA and congressional rules, it is futile to pursue ECA reform except as a bilaterally shared enterprise between Democrats and Republicans on equal terms.

There’s one more point about bipartisanship worth making in connection with the necessity of ECA reform. The overriding goal of ECA reform, at least as I see it, is to make sure that Congress acts properly under the Constitution in performing its Twelfth Amendment role to receive and count the electoral votes sent from the states. For Congress to act properly means no effort in Congress to repudiate valid electoral votes. It was an improper effort of this nature, led by Representative Mo Brooks and Josh Hawley (among others), that instigated the insurrection that occurred last January 6.

But, as discussed above, for ECA reform to be effective, the members of Congress who hold office on January 6, 2025 must agree to abide by the ECA. As important as it is for Congress to enact a well-revised ECA, that clarifies the procedures to be followed in the next joint session to count electoral votes, it does no good if the incumbent officeholders simply refuse to abide by what Congress previously enacted. Therefore, it is essential too that Congress on January 6, 2025 be populated with enough incumbents willing to follow the rules, rather than seize power for one’s own party regardless of what the rules provide.

Given this additional necessity, Democrats should be worried about the potential replacement in Congress of Republicans who refuse to go along with the Big Lie about the 2020 election being stolen with Republicans who willing, even eagerly, embrace the Big Lie. In the Senate, it matters whether the Republican from Alabama is Richard Shelby or Mo Brooks, who is running as a Trump loyalist against Shelby’s former chief of staff. Similarly, it makes a difference whether Ohio’s Senator is Rob Portman or, potentially, Josh Mandel—who is currently the leading candidate for the GOP nomination to replace Portman and is making the Big Lie a centerpiece of his campaign. When it comes time for Congress to count the electoral votes on January 6, 2025, who will be the Senators participating in the process?

For this reason, Democrats in their electoral reform efforts since January 6 of last year have paid insufficient attention to the structural issue that threatens the widespread replacement of Republicans who refuse to embrace the Big Lie with other Republicans who do. This structural issue, which I’ve discussed in two recent law review articles (one just published and another forthcoming), as well as in columns for the Washington Post (one last March and another in September), requires eliminating the capacity of Donald Trump to control which Republicans are candidates on the general-election ballot in November. Along with working with Mitch McConnell on genuinely bipartisan ECA reform, Democrats should endeavor to work with McConnell for a simple majority-winner rule that would help protect his traditional wing of the GOP from the Big Lie insurgency that is endangering both his Republican Party and the Republic itself. Mitch McConnell is no fan of the Big Lie and the insurrection it caused. Whatever differences Democrats have with McConnell over other voting issues, the lesson of January 6 is to endeavor to make sufficient common cause to do what’s necessary, including ECA reform, to prevent a Big Lie 2.0 from successfully subverting the result of a valid presidential election next time.

"Gradually, then suddenly”: How the Protecting Our Democracy Act addresses institutional decay

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

In Ernest Hemingway’s The Sun Also Rises, Bill asks Mike how he went bankrupt. Mike responds “gradually, then suddenly.” January 6th marked the “sudden” part of American democracy’s decline, when it became patently clear that our system of government had been weakened. But I want to focus on the “gradual” part: How it is connected to the “sudden” turn, and how legislation–specifically, in this example, the Protecting Our Democracy Act–is a key component of reversing the country’s continued slide.

The decline of American democracy has been gradual. According to one measure from Freedom House, a non-profit that tracks democracy around the world, our democratic decline started in 2010. The Economist Intelligence Unit pegs it to 2006. These quantitative measures were first given a clear qualitative explanation in Yascha Mounk and Roberto Foa’s July 2016 piece in the Journal of Democracy, months before the election of Donald J. Trump.

Analysts have pointed to many factors for this decline. These range from political (gerrymandering, voting rights, etc.) to cultural (affective polarization) to technological (filter bubbles and misinformation) to economic (rising inequality). Another factor, however, is institutional decay.

Institutional decay typically happens over time, when underlying assumptions in an institutional structure gradually shift, making the constraints–in this case, constraints on the abuse of power–less impactful. Institutional decay is a natural occurrence of neglect, not a consequence of bad actors misbehaving in the short term. Congress must constantly review how laws work, how practice changes, and how legal authorities evolve. Think of it this way: If you don’t do regular maintenance on your house, something will go wrong. Your neglect helps create the conditions for the house to crumble.

It is the same with governing institutions. Institutional decay has enabled and incentivized presidents of both parties to violate the norms of their office and allow the rot of Congressional prerogatives. This has taken several forms, such as Congress’s increasing inability to legislate on matters of national importance, to the executive’s increasingly successful blocking of Congressional oversight.

Eventually, this wear and tear was bound to culminate in a more serious and abrupt breakdown, which is what occurred with the previous presidential administration. To be clear: People don’t storm the U.S. Capitol for presidents who respect governing institutions and checks on their power. They storm it for the sort of person who says that blowing right through these things is the only way to save the country–and that “I alone can fix it.”

Reversing institutional decay is the target of the Protecting Our Democracy Act (PODA), which passed the House in December 2021 on a bipartisan basis. Consistent with the theme of “gradually, then suddenly,” PODA addresses a number of areas of presidential power and checks and balances that have decayed over multiple administrations. For example:

  • Title I addresses the president’s pardon power, which has been abused by a number of Presidents, most notably President Bill Clinton.
  • Title IV addresses congressional subpoena compliance by accelerating judicial review. Gradually, Congress has lost its ability to get information from the executive branch. The provision in PODA was first suggested by Darrell Issa, former Republican Chairman of the House Oversight and Government Reform Committee (now Committee on Oversight) after his oversight attempts had been rebuffed by the Obama administration.
  • Title V gives Congress (and the public) more visibility into government spending and stronger enforcement tools when the executive branch hides information from the public. Presidents of both parties have hid information, and Trump weaponized that hidden information.
  • Titles VII and VIII address various problems with the whistleblower and Inspector General (IG) systems that were created after Watergate. Presidents of both parties have tried to undermine these accountability mechanisms within the government.
  • Title IX covers executive branch appointments, including rules for how Senate confirmable positions should proceed when there is inaction by either Congress or the executive branch. This issue has steadily gotten worse since the recess appointment battles at the end of George W. Bush’s second Term.

These ideas are checks on strongman government. They not only address institutional weaknesses that have worsened over time, but their necessity is even clearer at moments of peak antidemocratic behavior. Consider how they could have changed the first impeachment proceedings against President Trump, the Mueller investigation and related Congressional investigations, and events surrounding 1/6:

  • The pardon provisions of Title I may have limited how President Trump used or dangled pardons in the Mueller investigation.
  • The subpoena compliance provisions of Title IV may have accelerated the response to Congressional investigations of the White House.
  • The whistleblower and IG provisions of Titles VII and VIII could have exposed the concerns raised within the executive branch and provided additional protections to those raising the concerns.
  • The vacancy provisions of Title IX would have required regular Congressional testimony by acting officials and created more channels of accountability. Additionally, it would have been an important down-payment on fixing the broken appointment confirmation system. A number of positions in the executive branch that had key decision roles on January 6th were not occupied by Senate-confirmed individuals at the time. Instead, they were populated by individuals who were selected by President Trump - without Congressional input - using the over-relied on Federal Vacancy Reform Act or the succession statutes of the relevant agencies, such Chris Miller, the Acting Secretary of Defense, who delayed providing National Guard support; Jeffrey Clark, the Acting Assistant Attorney General for the Civil Division, who plotted with President Trump to overturn the election results; and the entire senior leadership of the Department of Homeland Security.

Much of PODA’s spirit, however, is to highlight institutional decay that leads to less obvious–but no less serious–de-democratization. Consider national emergencies, which are the subject of Title V of the bill. In 1976, Congress passed and President Gerald Ford signed the National Emergencies Act (NEA) to create a structure for exercising certain legal authorities when declaring national emergencies. Congress delegated certain authorities to the President, and Congress gave itself a way to intervene when it disagreed with a President’s use of national emergencies.

The Brennan Center’s Liza Goitein has documented the ways in which this system gradually transferred powers to the executive branch. For instance, Congress never reviewed any of the emergencies that a president had declared prior to the Trump administration, creating a de facto blank check for executive power. Furthermore, the 1983 Supreme Court decision INS v Chadha made Congressional review even harder, because Congress would need to muster a super majority to terminate a President’s veto. This happened in 2019, when majorities in the House and Senate each voted twice to terminate former President Trump’s reallocation of Congressional appropriated money toward his U.S.-Mexico border wall project, using the NEA as his rationale.

The institutional framework around national emergencies had decayed gradually in the 43 years since its adoption.  The decay was largely due to Congressional disuse of the tools at its disposal, and Supreme Court precedent that altogether dulled Congress’s tools. Had Congress reviewed and responded at any point during this four-decade stretch, the sudden challenge brought by President Trump–essentially confiscating billions of dollars Congress approved by law for one thing and using them for another–would never have happened, or at least would not have set such a scary precedent.

It’s better late than never, though. Congress can perform institutional maintenance now, with a presidential administration that’s open to reform and the bipartisan potential that PODA–many of whose ideas were in fact introduced first by Republicans–provides. For example, even after President Trump’s national emergency declaration for the border, it was Republicans in the Senate, led by Mike Lee, who pushed for reforms to the national emergency system.

That, right there, is one way to see PODA as transcending left-right, as well as the current political moment. It’s about the long-term health of the country’s democratic institutions, which would be bolstered by smart, preventive measures such as those contained in PODA.

Accountability from Within

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

A year ago today, millions of us watched in horror as our democracy met the literal brink of collapse. Whether the view was from your mobile device, your television, or even worse, from inside the U.S. Capitol where a wild mob of insurrectionists wielding weapons and tactical gear stormed in with the hopes of killing anyone in their path, January 6th immediately became one of those days that you’ll never forget. And though it’s a day that is unforgettable, it’s also a day that was incredibly unsurprising.

Months before the 2020 presidential election, it almost seemed like former president Donald Trump was foreshadowing the horrific outcome that would ultimately come to be. In June 2020, when asked about whether he would accept the results of the upcoming election, he responded that he would “have to see.” “I’m not a good loser, I don’t like to lose.” What followed was a long road of lies and misinformation that boiled over right on the steps of the Capitol on January 6th. While Trump bears much of the responsibility for peddling lies that cost people their lives, he doesn’t shoulder the burden alone. Lawyers also played a role in helping to promulgate lies about the 2020 election. Jeffrey Clark, for example, who was an assistant attorney general in the Trump Administration played a critical role in supporting Trump’s attempts to undo the 2020 election results. Clark has since been subpoenaed by the Select Committee to Investigate the January 6th Attack on the United States Capitol as the committee’s investigation has uncovered evidence that he tried to involve the Department of Justice in “efforts to interrupt the peaceful transfer of power.” And as the Select Committee continues its investigation to determine what accountability measures need to be taken, the legal community should be mulling over the same question and considering what accountability looks like for lawyers who undermine democracy and justice.

Of course, all parties should be “held accountable” – criminally and civilly – for involvement in the January 6th attack. We should also, however, examine and reform the more subtle ways that lawyers wield their power and credibility on an everyday basis. Yes, Trump had the support of lawyers to spread the big lie that the election was stolen. But the culpability of lawyers began long before that. During his time in office, Trump had the support of lawyers to carry out countless cruel policies that his administration implemented. When he was Deputy Attorney General, Rod Rosenstein helped to implement family separation, ordering government attorneys to tear families apart even when “children were barely more than infants,” in the service of the Trump administration’s mission to keep immigrants of color out of America. John Gore, a gerrymandering expert, was the architect of the Trump administration’s attempt to add a citizenship question to the 2020 census and concealed evidence in the ensuing lawsuit. Eugene Scalia, Trump’s Secretary of Labor, spent his tenure refusing to issue worker safety regulations for workers on the frontlines of the COVID-19 pandemic. Noel Francisco stood up in court to defend the Muslim ban, to end DACA, and to deny abortions to teenagers in the border camps. These individuals are just a handful of examples of the scores of lawyers who have weaponized the law to strip others of their humanity. Because lawyers aren’t screaming from the mountaintops that we need to destroy our democracy, far too often their nefarious work goes unnoticed or they have the opportunity to rehabilitate their reputations and find a home in government and/or the private sector.

We need to reform our legal profession so that we don’t churn out lawyers intent on subverting the law and justice. In law school, students are perpetually peppered with the idea that the law is a neutral arbiter of justice. But that isn’t true. It is past time for law schools to openly acknowledge that the law can in fact be used to either help or harm people and communities. If our colleagues are harming communities – and if they are harming our democracy – we need to think about how we need to change our profession so that isn’t the case. We must create and sustain a culture where lawyers are not incentivized to become bad actors because they know a professorship, a cushy job in a corner office, or a government appointment awaits them on the other side. Modifying what’s acceptable, and what’s not, in our profession is paramount if we ever expect to deter the worst of us from going as far as dismantling our democracy.

Putting D.C. in the Chain of Command: Congress Should Reform the DC National Guard’s Outdated and Dangerous Command Structure

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

One of the most dramatic failures on January 6, 2021, was the long delay in deployment of the D.C. National Guard (DCNG) to the U.S. Capitol. Although the reasons for the delay remain murky, the solution is clear: Congress should transfer command and control of the DCNG from the U.S. president to the Mayor of Washington, D.C.

The DCNG is the only National Guard organization in the United States that is always under the president’s command. In every other state and U.S. territory, National Guard forces are under local control unless called into federal service. The unique command structure of the DCNG is often mistakenly attributed to the fact that D.C. is not a state. But statehood is not a prerequisite, as evidenced by the fact that Puerto Rico, Guam, and the U.S. Virgin Islands all exercise command and control over their Guard forces. The real explanation is that Congress established DCNG’s command structure in 1889, when D.C. had no local government—a state of affairs that changed fifty years ago.

As a result of this outdated arrangement, if the mayor of D.C. wants to engage the DCNG in any of the ways that other local governments routinely use their Guard forces—such as supporting civilian authorities’ responses to natural disasters, public health crises, or riots—she must obtain permission from the Department of Defense. Under the most straightforward of circumstances, this hurdle would lead to some bureaucratic delay.

On January 6, the conditions were anything but straightforward, and the extent of the delay cannot be explained by mere bureaucracy. According to the Department of Defense’s official timeline and supplemental reporting, D.C.’s mayor and the U.S. Capitol Police requested deployment of the DCNG at 1:34 pm and 1:49 pm, respectively. Yet the Department of Defense did not approve deployment until 4:32 pm and did not convey that approval to the DCNG’s commanding general until 5:08 pm. In the intervening three-and-a-half hours, rioter Ashli Babbitt was fatally shot, and U.S. Capitol Police officer Brian Sicknick was attacked and sprayed with a chemical irritant, contributing to a fatal stroke several hours later. Four other U.S. Capitol Police officers who were on duty during those chaotic hours committed suicide in the days and months that followed.

At the time, I, along with many other observers, speculated that the Department of Defense had dragged its feet in approving the requests for DCNG deployments. As my colleague Joseph Nunn and I wrote, “[I]t seems plausible, if not likely, that the president’s behavior threw a wrench into the decision-making process and delayed the approval. Even if the president did not actively object, lawyers and others in the Defense Department ostensibly had to puzzle through how to proceed in a situation where the Guard’s commander-in-chief was not on board.”

Since then, details have emerged suggesting that the Department of Defense did delay approval—although perhaps not for the reasons many of us originally thought. As described by Ryan Goodman and Justin Hendrix in Just Security, it appears that top Pentagon officials, including acting Secretary of Defense Chris Miller, were concerned in the days leading up to January 6 that President Trump would attempt to use military force to disrupt the certification process. They were determined to prevent this outcome. To that end, they deliberately placed unusual advance restrictions on how DCNG forces could be used on January 6. And when the need for greater DCNG involvement become painfully apparent, they still hesitated, fearing (Goodman and Hendrix posit) that the president would “re-mission” the DCNG once deployed.

Another possible reason for the delay lies in the concerns reportedly voiced by Army officials about the “optics” or “visual” of sending the National Guard to the U.S. Capitol while the presidential election was being certified. At first blush, this might seem a shallow justification, and it could well be a pretext for less benign reasons. But concerns about “optics” in this setting should not lightly be dismissed. In the vast majority of circumstances, Department of Defense officials should be reluctant to send troops under the command of the president to police the certification of a presidential election. They should worry, not only about the potential for actual military interference with the election, but also about creating a public perception of such interference. If military officials were slow to abandon this default wariness, that is arguably a good sign.

We might never know for certain why the delay occurred; indeed, various actors might have had divergent motivations. Whatever the reasons, though, the outcome would have been different if the mayor had command over the DCNG. The Metropolitan Police Department was on the scene within 10 minutes; the DCNG would not have been far behind. And while National Guard forces might look the same whether they report to the mayor or to the president, the “optics”—and the reality—would have been different in one critical respect: the commander of the military operation would not have been the same person whose reelection hung in the balance.

Giving command and control of the DCNG to the mayor would also help to close a glaring loophole in the Posse Comitatus Act, the law that prohibits federal troops from engaging in domestic law enforcement unless expressly authorized by Congress. The Posse Comitatus Act applies to National Guard forces only when they have been called into federal service. But even though the DCNG is always under federal command, the Department of Justice has endorsed the legal fiction that it can operate in non-federal status. That means the president can use the DCNG for domestic policing purposes at any time, without invoking the Insurrection Act or any other statutory authority.

President Trump took advantage of this loophole in June 2020, deploying Guard forces in D.C. to suppress overwhelmingly peaceful protests against the police killing of George Floyd. A future president could stage a similar end-run around the Posse Comitatus Act by using the DCNG to “enforce” federal election law, as he or she interprets it.

Of course, even if default control of the DCNG lay with the mayor, the president would retain the authority to call Guard forces into federal service. On the positive side, that means transferring command and control to the mayor would not interfere with a responsible president acting swiftly to deploy the DCNG in appropriate cases. By the same token, however, mayoral control would not prevent a rogue president from misusing the DCNG—or active-duty federal troops, for that matter—to try to interfere with an election. The Posse Comitatus Act would make such actions more difficult, but it would not entirely foreclose them, given the broad exception provided by the Insurrection Act. Local control, in other words, is not a panacea.

Nonetheless, on January 6, mayoral control of the DGNG could very well have saved lives, while simultaneously mitigating some of the legitimate concerns triggered by a presidential deployment. In the future, mayoral control would expedite Guard responses to more typical local emergencies by eliminating the bureaucratic process of federal approval. And it would limit the president’s ability to use military forces for law enforcement purposes in ways that Congress has not authorized.

With these considerations in mind, lawmakers included a provision transferring command and control of the DCNG to D.C.’s mayor in the House-passed version of the National Defense Authorization Act for 2022 (NDAA). Unfortunately, this provision was stripped from the final compromise version of the bill that was signed into law. But Congress will have another opportunity when it considers the 2023 NDAA this spring. It is time to bring command and control of the DCNG—along with other key pieces of the legal framework for domestic deployment of military forces—out of the nineteenth century, and to recalibrate these authorities to meet the precarious moment in which we find ourselves.

A Year Later – Sham Election Reviews Continue to Undermine Democracy

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

Loyalists of former president Donald Trump invaded the U.S. Capitol one year ago, carrying weapons, waving the Confederate flag, and insisting that the 2020 election was fraudulent. There was no credible support for the claims of “Stop the Steal” advocates. Nevertheless, Pro-Trump politicians have spent the past year attempting to fabricate that support. They have dented public confidence in the voting process and made it harder for voters, in particular voters of color, to vote. Less appreciated, but no less damaging, is the way they have coopted and undermined a critical tool of our democracy: the post-election audit.

Many states have rigorous protocols for post-election audits, including randomized selection of the electronic tallies to be checked against paper records, a commitment to objectivity throughout the process, and conducting the audit in full public view. When these standards are upheld, post-election audits help check that the outcomes of elections are accurate, and they maintain or restore public confidence in our democracy.

The sham reviews following the 2020 election were, essentially, the opposite of this. They were initiated for partisan reasons, as part of an attempt to overturn the will of the voters by leveraging a reluctance to accept the votes cast by diverse populations who live in major metropolitan areas. They put the conclusion before the process, and established protocols were not followed.

The Arizona sham-review, which targeted only Maricopa County, including the state’s largest city, Phoenix, exemplifies these problems. On Nov. 30, 2020, while Governor Doug Ducey (R) was in the process of certifying Joe Biden as the winner of Arizona’s presidential electors, his cell phone rang. It was Trump. Gov. Ducey wisely silenced the call, but Trump wasn’t finished with Ducey. A few hours later, he publicly accused the governor of “betray[ing] the people of Arizona,” and ignoring “so many horrible things concerning voter fraud.”

A few days later, Trump began his pressure campaign for a partisan review. Senate President Karen Fann, who over the past two weeks had been in close contact with Rudy Giuliani and others representing Trump’s campaign, called for a so-called “forensic audit” of Maricopa County, Arizona’s election results. Trump endorsed the sham audit, claiming it “will easily give us the state.” A private campaign was also underway, with Giuliani calling the four Republican supervisors on the Maricopa County Board, including a call to Supervisor Clint Hickman on Dec. 4, expressing happiness that “there’s gonna be a forensic audit” and that Trump had requested he call to talk to Hickman about it.

There was no legitimate purpose for this review. The legal challenges had failed, and the election results had already been certified. On Dec. 14, the Arizona Senate Judiciary Committee held a hearing in which Maricopa County election officials, the Arizona Attorney General’s election integrity unit, and a county attorney all testified that there was no evidence of fraud or manipulation in the November 2020 election. Nevertheless, the Republican chair of the committee, with the approval of Fann, issued two subpoenas demanding Maricopa County election materials in pursuit of a “forensic audit.”

Demands for these reviews were made in other locations as well, such as one requested in a lawsuit by a resident of Antrim County, MI. Pennsylvania state Senator Doug Mastriano, who had urged the Acting U.S. Deputy Attorney General to address claims of fraud, successfully demanded a review in Fulton County, PA, at the end of December. And pressure from the White House continued in Arizona. On New Year’s Eve 2020, Supervisor Hickman in Arizona was asked to call President Trump. (Hickman declined.)

On Jan. 2, 2021, federal lawmakers echoed these requests. Eleven pro-Trump U.S. senators issued a joint statement announcing their intention to vote on January 6 to reject electors from disputed states. The alleged disputes were not based in fact — there was and never has been any factual basis for believing there might be errors that plausibly changed outcomes in the presidential contest. Instead, the Senators were responding to concerns and distrust that Trump and his associates had conjured through political pressure.

They demanded an “emergency 10-day audit,” after which “individual states . . . could convene a special legislative session to certify a change in their vote, if needed” — a scenario remarkably similar to one described in Trump lawyer John Eastman’s six-page memo outlining mechanisms for overturning the election, which was reportedly shared in a January 4, 2021 meeting in the Oval Office. In the memo Eastman describes a scenario where “comprehensive audit[s]/investigation[s]” would be performed by individual state legislatures, which could certify Trump electors if the partisan review showed “to the satisfaction of the legislature . . . sufficient fraud and illegality.” Put simply, these audits aimed to provide cover to state and federal politicians who wished to nullify President Biden’s victory.

Trump’s campaign failed. Vice President Mike Pence was not convinced to go along with any of these delay tactics, the violent attack on the electoral vote counting process was repelled, and Congress certified President Biden’s win in the early morning hours of Jan. 7, 2021. But in the year since, the movement for sham partisan reviews has taken on a life of its own.

The movement’s most prominent effort to date remains the partisan review of Maricopa County’s 2020 election, conducted by the contractor Cyber Ninjas. Cyber Ninjas finally issued a report in September 2021, replacing the outright lies that have triggered defamation lawsuits against other Big Lie proponents with copious and misleading innuendo.

The most attention-grabbing findings fit the pattern that purveyors of voter fraud myths have long followed: willful ignorance of basic probability, common election laws, and common election administration procedures in order to raise baseless suspicions about fellow voters and the dedicated public servants who count their votes and certify the results. The report claims it is suspicious that some voters share the same full name and birth year — it isn’t. It uses a commercial move tracking service to raise suspicions about voters who, according to the commercial service, moved before the election. But even leaving aside the accuracy of the commercial service’s data, temporary moves do not alter eligibility to vote in Arizona. Unsurprisingly, the Cyber Ninjas audit was promptly used in the continuing disinformation campaign against our elections, with Trump citing its “critical” — and false — "finding” that 23,344 ballots were somehow impacted by the voter purportedly moving.

The push to conduct partisan reviews continues to spread. State legislators in Pennsylvania have proposed conducting their own partisan review that would use the Arizona Senate’s actions as a model. Assembly members in Wisconsin have launched a partisan effort there, targeting officials in its largest cities: Milwaukee, Madison, Racine, Kenosha, and Green Bay. Even after a lawsuit seeking to gain access to ballots in Fulton County, GA, for a partisan review was dismissed, Gubernatorial candidate David Perdue has sued Fulton County officials seeking a review. Now, even in states that President Trump won, such as Texas, Florida and Idaho, local party activists have demanded these reviews over the objections of local election supervisors of both major parties.

One year after a failed attempt to reject the will of the voters, states, local governments, and Congress must act to secure elections from this lasting effort to sabotage them. Election officials need resources to improve their personal and offices’ physical security, to fight back against election disinformation, and to secure election systems against infiltration by those who refuse to accept voters’ choices. They should be protected against retaliation for ensuring eligible voters can exercise their rights. And through the Freedom to Vote Act, Congress can protect election workers during the vote tabulation process, as well as require (and fund) legitimate post-election tabulation audits. By providing voters a remedy if their right to vote (and have that vote counted) in a federal election is infringed, the Act would also protect against the danger of future attempts at sabotage.

This is a difficult moment for American democracy. A disturbing proportion of the electorate falsely believes the last presidential election was fraudulent, elections officials are threatened with violence, legislators are seeking the right to overturn results, and state legislatures are retaliating against those who certified the results. These partisan election reviews add to the turmoil, feeding into disinformation around the election, and undermining legitimate post-election audits — which show people in the clearest and most transparent way possible that their votes are being accurately counted.

Examining our Past to Secure our Future: What Reconstruction can teach us about January 6th and Constitutional Accountability

This blog is part of ACS’s Blog Symposium remembering and analyzing the January 6, 2021 attack on the Capitol.

The nation is deeply divided. It grapples anew with stark racial inequality and injustice. A violent insurrection threatening political stability was recently staved off, and elected leaders stand accused of betraying their oaths to uphold the Constitution. There are calls from some for investigation and accountability, and calls from others to avoid looking too closely at the past for fear that it will hamper unification efforts. And the fife and fortepiano rank as popular musical instruments.

Until that last detail, one can be forgiven for thinking the moment described is 2021, not 1868. The similarities are striking. And that should be reason enough for us to mine the history of that moment and learn its lessons.

In 1868, in the wake of the Civil War, during a period of our nation’s history so transformative that it is often referred to as the Second Founding, the Fourteenth Amendment to the United States Constitution was adopted. Many people know about the Fourteenth Amendment’s first section, which contains its promises of equal protection, due process, and birthright citizenship. Less familiar are the accountability provisions of the Amendment’s third section, which prevent current or former government officials from ever again holding federal or state office if they “engaged in insurrection or rebellion” against the nation or gave “aid or comfort to the enemies thereof.”

At the time of the Amendment’s adoption, there were concerns that former Confederate officials, after betraying their oaths to uphold the Constitution, would simply take office once again, serving as destabilizing forces in a nation attempting to knit itself back together. The drafters of Section 3 of the Fourteenth Amendment took a broad approach, applying the disqualification not only to Confederate officials, but to anyone who had “taken an oath . . . to support the Constitution” and then subsequently engaged in insurrection or rebellion. This applied to “a member of Congress,” “an officer of the United States,” “a member of any State legislature,” and “an executive or judicial officer of any State.” The drafters also chose to make such disqualification permanent, unless the disqualification was lifted by a two-thirds vote in both the House and Senate. The drafters recognized that accountability doesn’t threaten unity, but rather is essential for achieving it.

Whatever questions exist about the outer limits of what constitutes “engag[ing] in insurrection or rebellion,” or giving “aid or comfort” to those who did, some of former President Donald Trump’s documented actions arguably fit the bill. On January 6, 2021, Trump urged an angry group of supporters to storm the Capitol, interrupt the counting of electoral ballots, and disrupt the orderly transfer of power. These actions followed weeks of Trump undermining confidence in the elections, spreading falsehoods that were disproven in a series of failed litigation challenges, and pressuring state officials to “find” votes in an attempt to change the election results. And Trump might have been joined by other officials who violated their oaths.

The bipartisan Select Committee to Investigate the January 6th Attack on the United States Capitol is working steadily to help Congress and the American public understand the tragic events of January 6, 2021, the events that led up to it, and what might be done to help avoid similar threats to our democracy in the future. The Select Committee has interviewed over 300 people, has received and is in the process of reviewing over 35,000 documents, and has fielded more than 250 tips through their tip line. As the bipartisan staff members meticulously review all this information, they should follow the information wherever it leads. If the information indicates that officials—including former President Trump—“engaged in insurrection or rebellion against the nation” or “gave aid or comfort to the enemies thereof,” the Select Committee should share such information with the public and make clear the implications for the ability of those individuals to hold office in the future. And Congress should consider taking any additional steps necessary. Section 5 of the Fourteenth Amendment explicitly vests Congress with “the power to enforce, by appropriate legislation,” the other sections of the Amendment, clearing the way for a range of congressional actions.

The text of Section 3 of the Fourteenth Amendment sets out no specific process or mechanism for removing offending officials from office and for keeping them off ballots when they seek office, whether on the state or federal level. However, scholars have cautioned that Congress might be best served by taking some affirmative action, and that such actions might differ based on whether the offending individuals are currently serving in office. For instance, offending members of Congress might be expelled by the two-thirds vote required by the Expulsion Clause, but Congress could also pass new Section 3 enforcement and implementation legislation establishing specific procedures for removing offending officials from office and governing determinations of future ineligibility for other offending individuals. Or Congress might, through a joint resolution, declare an official (such as a president) ineligible for future office pursuant to Section 3, understanding that such an official might challenge this in the courts.

The purpose of this short piece is not to prescribe specific congressional action, but rather to make the point that if the information being collected by the Select Committee warrants it, Congress has the opportunity to hold individuals like Trump accountable and prevent them from seeking office again. Congress should take that opportunity, confident that they are backed by the Fourteenth Amendment’s text and enactment history.

Of course, a year after the tragic events of January 6, 2021, there are those who once again caution that it is best to move on by not looking back. And here, history proves instructive once again. In 1872, a mere four years after adoption of the Fourteenth Amendment, Congress by the requisite two-thirds margin voted to remove the disqualification from all the state officers covered by Section 3, and then a few years later, Congress removed the disqualification for the few remaining individuals affected. Perhaps this was motivated by a belief that it was time to turn the page. But for whom was the page turned? While no one can yoke the failure to fulfill the promise of the Reconstruction era to one particular vote or action, it is unquestionably true that Congress’s vote held symbolic importance, as well as legal importance. Apparently, taking up arms against one’s country wasn’t considered that bad; after a mere four years in the political version of time-out corner, leaders who violated their oaths could once again run for office, essentially vying for the opportunity to take new oaths. By normalizing the continued political participation and leadership of former Confederate leaders, Congress further normalized many of the deeply oppressive ideas that led to the Civil War in the first place. It’s hard to separate Congress’s vote in 1872 from what came next—the brutal suppression of the rights of individuals who had only recently been freed from slavery, and the utter failure to fulfill the equality and liberty promises embedded in the Fourteenth Amendment.

Bryan Stevenson has said, “The North won the Civil War, but the South won the narrative war.” How Congress acts upon the information that is being carefully collected by the bipartisan January 6th Select Committee will be important not only for constitutional accountability, but also for how the American public understands the seriousness of what went on that day and whether such anti-democratic impulses gain further currency. We learn almost daily about how close we came to the election results being overturned, and how little separated a violent failed insurrection from becoming a violent successful one. And there remain serious concerns about the potential for another insurrection. If the Select Committee finds out that individuals violated their oaths to thwart the will of the people, it will be in part up to Congress to ensure that these officials never again govern in the people’s name. We ignore Reconstruction history at our peril.