Can Congress overturn presidential election results? Here are changes since Jan. 6, 2021
WASHINGTON – Three years ago, the nation’s Capitol underwent a marathon day that disrupted a centuries-old tradition of peaceful transitions of power in the United States.
Hundreds of supporters of former President Donald Trump broke into the U.S. Capitol building as Congress convened to help formalize the results of the 2020 presidential election, interrupting the proceedings for hours even as some Republican lawmakers moved to reject the election results in key swing states.
The riot shook Congress. A bipartisan group of lawmakers crafted legislation intended to clarify the electoral count process that had created such uncertainty following the 2020 election.
As the country heads into another election year that will likely have Trump on the general election ballot, experts say those changes significantly reduced the likelihood that valid election results could be overturned by Congress or the vice president – but warned there are still vulnerabilities at the state and local level that could be exploited.
“It is much better than it was, it was totally arcane,” said Rebecca Green, an election law professor at the College of William and Mary. “This reform really does provide a lot of important clarification and takes away some of the risks that we saw unfold on Jan. 6.”
Game-changing legislation
In the immediate wake of the Jan. 6 Capitol riot, lawmakers of both parties were rattled. Many condemned the violence and moved to clarify the objection process to stop the assault from happening again.
A bill to change vague and vulnerable wording in the 19th-century Electoral Count Act – supported by dozens of members of both parties – was included in a year-end spending bill signed by President Joe Biden in December 2022.
The law made some significant changes. It:
Clarified that the vice president’s role is ceremonial and does not include the power to accept or reject electors.
Designates one official in each state to submit the state’s slate of electors, rather than leaving the possibility of multiple slates being submitted to Congress, and requires Congress to accept only that slate.
Created a process of expedited court review of electoral challenges from presidential candidates.
Raised the threshold to object to a state’s election results from one senator and one representative to one-fifth of each chamber of Congress.
These changes significantly decrease the risk of Congress overturning valid election results, experts said, by preventing dueling slates of electors and requiring more consensus to mount an objection.
“The idea is that only serious objections would be entertained,” Green said. “The universe of possible problems is much, much smaller with this process.”
New risks and pressure
Despite these changes, the experts who spoke with USA TODAY said valid election results could still be overturned.
“There are grave risks,” said Matthew Seligman, a legal scholar at Stanford University focusing on election law. But “I think they’re a bit different than the risks that we faced in 2020.”
“Because the Congress and the vice president are going to be off the playing board in significant ways, I think the effort is going to be focused more on states,” Seligman said, such as pressuring Republican-controlled legislatures or secretaries of state to take unprecedented action. There have now been years for Trump’s legal team to contemplate new avenues to reverse legitimate election results, he added.
Sheri Berman, a political scientist at Barnard College, agreed that state and local election officials are likely to be in the spotlight.
“We have a very decentralized electoral system,” she said, creating multiple avenues for legal disputes. “There’s lots of potential places where things can go wrong.”
Since 2021, Trump’s grip on the Republican party has also intensified, multiple experts noted.
More than half of Trump supporters have no confidence the results of the 2024 election will be accurately counted and reported, according to a recent USA TODAY/Suffolk University Poll. A majority of GOP candidates in the 2022 midterm elections denied or questioned the results of the 2020 election. The new Speaker of the House, Rep. Mike Johnson of Louisiana, was a leader in a legal effort to overturn the election.
If Republicans retain control of the House or win the Senate, they would be responsible for adhering to the new electoral count process, perhaps under immense pressure from Trump or their constituents.
How your vote gets in front of Congress
Before the election, state political parties typically choose people to serve as electors if their presidential candidate wins. In most cases, whichever candidate wins the most votes in each state claims all of its electoral votes (Maine and Nebraska use a proportional system).
The winning party’s electors meet to cast their votes in December after the election. A copy of those votes are sent to the vice president to be counted in front of Congress on the following Jan. 6. Whichever candidate received the most electoral votes – at least 270 – becomes the president.
This is typically an uneventful process. But as the votes are read out, members of Congress can object to counting them. They’re required to state the reason they’re objecting in writing, and under the old procedure, only one senator and one member of the House was required to object.
If that happens, the Senate and the House are required to meet in their own chambers and debate the merits of the objection and vote on whether to accept it. If both chambers do, those votes are excluded from the total count.
What happened on Jan. 6, 2021
This process played out three years ago, when Arizona Rep. Paul Gosar and Texas Sen. Ted Cruz, both Republicans, objected to Arizona’s results, citing allegations of election fraud that had been raised in eight separate lawsuits and rejected each time.
It was the climax of months of challenges by the Trump campaign to keep the presidency despite losing the election.
Trump and his allies pressured state and local election officials not to certify the election results; encouraged Republican electors to submit their votes and pushed officials in key swing states to formally recognize them rather than the duly elected Democratic slate; and pressured his Justice Department to declare a formal investigation into alleged fraud, among other efforts.
Trump had also been publicly pushing Republican lawmakers and Vice President Mike Pence to reject the elector’s votes in an effort to help him reverse the election results, or declare the election disputed in order to buy time for state legislatures to replace Democratic electors.
Pence said he wouldn’t because he didn’t have “unilateral authority” to reject the results, and the lawmakers’ plan to overturn certain states’ votes wouldn’t succeed because of the House’s Democratic majority.
But the two chambers split to debate the objection, which was intended to be the first of six – lawmakers planned objections to Georgia, Nevada, Michigan and Wisconsin as well. The debate was interrupted when a mob of Trump’s supporters stormed the Capitol.
After the building was cleared nearly six hours later, the chambers resumed their debate and eventually defeated the Arizona objection. Rep. Scott Perry, R-Pa., and Sen. Josh Hawley, R-Mo., objected to Pennsylvania’s results shortly after midnight. That objection was rejected after 3 a.m. Thursday, Jan. 7, 2021. The other objections never materialized, and the results were certified.
This article originally appeared on USA TODAY: Can Congress overturn an election? Here are changes since Jan. 6, 2021
