The January 6th Anniversary and Beyond

The first anniversary of the January 6, 2021 riot at the Capitol has now come and gone. Despite all the partisan posturing, there is at least some hope for constructive bipartisan action to make the election system better.

Democrats were not shy about highlighting this anniversary. They held a ceremony in the Statuary Hall of the Capitol, including a fiery speech by President Biden which denounced the “web of lies” by his predecessor. The ceremony even included a song by a star of the Hamilton musical.

Republicans have their own set of problems. They both try to look concerned about the riot while tiptoeing around unsubstantiated claims by former President Trump, who has a very substantial base of supporters within the GOP, that there was massive fraud in the 2020 election. Almost all Congressional Republicans basically absented themselves from Washington on January 6, 2022 (although some of the absences were related to the funeral of a former Senator) and largely ignored the anniversary.

I have stated my opinion on January 6, 2021 and the events leading up to it.  While there were many substantial changes in voting procedures in 2020 (often adopted as a purported response to Covid), a huge increase in voter turnout, and vote counts that went on for days after the election, it was pretty clear by the end of November that Mr. Trump lacked evidence of fraud or misconduct in at least three states sufficient to overturn the electoral college results.  Accordingly, Mr. Trump should have conceded at that time or at least announced that he was not contesting the results.

Instead, however, Mr. Trump persisted in his Stop the Steal campaign, which, in addition to putting forward unproven claims about the election count, propagated the far-fetched theory that Vice President Mike Pence had the power to hold up the vote count.  Mr. Trump and his supporters then recklessly sponsored the ill-fated rally on January 6 near the Capitol.  Mr. Trump did urge peaceful protests at the rally, but then rather disgracefully delayed his response for hours when his supporters breached the Capitol.

Now, of course, Democrats are claiming that Mr. Trump’s actions, distasteful as they were, represent a frontal assault on democracy by Republicans. They point to laws passed in Republican dominated legislatures that tinker around the edges of voter eligibility by, for example, strengthening identification requirements for mail ballots or limiting the number of ballot drop boxes. In addition to decrying these small ball changes, Democrats also conjure up the idea that Republican legislatures will in 2024 authorize competing sets of electors in states where they have lost. Of course, this did not happen in 2020.

The Democrats’ remedy is to pass laws negating the Republican state law election changes and in effect federalize election law.  Mr. Biden grandiosely refers to this proposed legislation as “a battle for the soul of America”.   His problem, however, it that passage in the Senate would require not applying the filibuster rule, a change that two Democratic senators oppose.

While the prospects for Mr. Biden’s sweeping election law remain slim, there is something that could be done that has significant bipartisan support — revise the murkily written Electoral Count Act of 1887, which would make an electoral challenge in Congress of a type waged by Mr. Trump much more difficult.

At a minimum, the revised law should make it explicit that the vice president does not decide which electoral votes to count and that states that hold popular votes to choose electors cannot later attempt to have their legislatures select their own electors.   The law also could be amended to require more than  single senator to object to a state’s electors in order to trigger a vote and perhaps  to require more than a majority vote of each house to replace a certified slate of electors.  Passage of these clarifying amendments would accomplish far more than loud expressions of partisan outrage.

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