Thread by @JJohnsonLaw

Jan. 6 Was Worse Than We Knew - The New York Times nytimes.com/2021/10/02/opi…

The country was hours away from a full-blown constitutional crisis — not primarily because of the violence and mayhem inflicted by hundreds of President Donald Trump’s supporters but because of the actions of Mr. Trump himself.

In the days before the mob descended on the Capitol, a corollary attack was playing out down the street in the White House, where Trump, Pence & a lawyer named Eastman huddled in the Oval Office, scheming to subvert the will of the American people by using legal sleight-of-hand.

Mr. Eastman’s unusual visit was to discuss his proposed six-point plan. It involved Mr. Pence rejecting dozens of already certified electoral votes representing tens of millions of legally cast ballots, thus allowing Congress to install Mr. Trump in a second term.

Pence ultimately refused to sign on, earning him the rage of Trump & chants of “Hang Mike Pence!” by the rioters, who erected a makeshift gallows on the National Mall. The fact that the scheme to overturn the election was highly unlikely to succeed is cold comfort.

All Americans who care about preserving this Republic have a clear task: Reform the federal election law at the heart of Mr. Eastman’s twisted ploy, and make it as hard as possible for anyone to pull a stunt like that again.

The Electoral Count Act, which passed over 130 years ago, was Congress’s response to another dramatic presidential dispute:the election of 1876, in which the Republican Rutherford Hayes won the White House despite losing the popular vote to his Democratic opponent, Samuel Tilden.

After Election Day, Tilden led in the popular vote & in the Electoral College. But the vote in South Carolina, Florida & Louisiana was marred by accusations of fraud and intimidation. Officials in each state certified competing slates of electors.

The Constitution said nothing about what to do in such a situation, so Congress established a 15-member commission to decide which electors to accept as valid.

It was obvious that Congress needed clearer guidelines for deciding disputed electoral votes. In 1887, the Electoral Count Act became law, setting out procedures for the counting and certifying of electoral votes in the states and in Congress.

But the law allows any objection to a state’s electoral votes to be filed as long as one senator and one member of the House put their names to it, triggering hours of debate — which is how senators like Ted Cruz and Josh Hawley were able to gum up the works on Jan. 6.

A small minority of scholars argue parts of the law are unconstitutional, which was the basis of Eastman’s claim that Pence could disregard the law & reject electors of certain key battleground states.Nothing in the Constitution or law gives the vice president this authority.

The job of the vice president is to open the envelopes &read out the results, nothing more. Any reform to the Electoral Count Act should start there, by making it explicit that the vice president’s role is ministerial & doesn’t include the power to rule on disputes over electors.

The threats to a free and fair presidential election don’t come from Congress alone. Since Jan. 6, Republican-led state legislatures have been clambering over one another to pass new laws making it easier to reject their own voters’ will.

Democrats should push through reforms & eliminate the filibuster if that’s the only way. They should recall that a majority of the Republican caucus in the House (139) & 8 senators, continued to object to the certification of votes even after the mob stormed the Capitol.

Mr. Trump may never stop trying to undermine American democracy. Those who value that democracy should never stop using every measure at their disposal to protect it.