As the nation marks the one-year anniversary of the January 6, 2021 assault on the Capitol, questions about safeguards for American elections remain. Here, Stanford Law’s Michael McConnell discusses constitutional questions raised by that unprecedented day.
There seems to be evidence that members of former president Trump’s inner circle had a plan to challenge the results of the November, 2020 presidential election and possibly overturn the election of President-elect Biden. The plan included various steps such as putting pressure on key swing states to delay certification of their electoral votes and persuading former vice president Pence to delay Congressional certification of the electoral college votes on January 6, 2021. Despite the storming of the Senate by a mob on January 6, in the early morning of January 7, 2021, Congress did carry out its duty and certified the election of Biden. Is there a Constitutionally legal way that the Trump plan might have succeeded? Is there real vulnerability in our democracy?
The good news is that all the constitutional guardrails held. Vice President Pence refused to assert a power he did not have. Not a single state legislature or state electoral agency succumbed to the President’s entreaties to declare results fraudulent. Every official in the Department of Justice with relevant authority stood firm. The entire White House Counsel’s office defended the rule of law. Candidate Trump’s lawyers had their day in court in state after state, and in every lawsuit, their claims of fraud and stolen elections proved groundless. These lawyers and many of the judges in these cases were appointed by President Trump. In my opinion, there was no sound basis for members of Congress to challenge any state’s certification of its electors, but in the end, Congress did its job, and the rightfully elected President took office.
That does not mean the events of January 6 were inconsequential. This was the first time in American history that supporters of a losing candidate for President used violence to attempt to change the outcome. There have been politically-motivated riots with more deaths and more destruction, but never before did a President of the United States, having taken the oath of office to protect and defend the Constitution, encourage a mob to challenge election results, after all lawful avenues of challenge had been tried and failed.
This was not a failure of our constitutional institutions, which performed as they should. It was the product of a poisonous increase in partisan hatred and division, in which the most fundamental principle of our constitutional democracy, that the will of the people as expressed in lawful elections must prevail, was forgotten.
What safeguards would you recommend Congress consider to shore up our elections to ensure that votes are counted fairly? How can we prevent states from buckling under partisan pressure to change electors and ensure that future vice presidents carry out their duties regarding certification of elections?
The statute governing the counting of Electoral College votes, the Electoral Count Act of 1887, contains dangerous ambiguities and sowed the seed of the controversy last year. There are genuinely bipartisan proposals to rewrite the law in ways that would prevent some problems. There is, alas, no bulletproof system for ensuring that electoral officials adhere to the law and stand up to partisan pressures. That they did so in 2020 is no guarantee for the future. What we need is a national revival of the idea that the popular will, as expressed through election rules set before the election, must be respected whether we like the result or not.
Do you think the country’s founders and the framers of the Constitution imagined such a situation?
Possibly yes. There were sufficient worries about the prospect of a disputed presidential election in 1800 that Congress seriously considered legislation in advance that would provide a settled mechanism for resolving such disputes. Unfortunately, neither the original Constitution nor the Twelfth Amendment gives much guidance. At the Constitutional Convention, the Electoral College was adopted late in the summer; Madison later observed that “it was not exempt from the hurrying influence produced by fatigue and impatience in all such bodies.”
Michael W. McConnell is the Richard & Frances Mallery Professor at Stanford Law School, director of the Stanford Constitutional Law Center, and senior fellow at the Hoover Institute. A constitutional law scholar, he served as a circuit judge on the U. S, Court of Appeals for the Tenth Circuit from 2002 – 2009. His most recent scholarship includes “The President Who Would Not Be King: Executive Power Under the Constitution,” (Princeton University Press, 2020), and “Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience,” (Cambridge University Press, 2021), co-authored with Nathan Chapman.
