That vote showed that many in the political elite were willing to depart from the central norm upholding any democracy — that the loser and their party accepts their loss — and to try to take advantage of the antiquated and vague laws that govern Congress’ limited role in presidential elections.
The scene raises the frightening possibility that unscrupulous lawmakers, egged on by enraged grassroots supporters, could go even further in attempting to overturn election results in the future. And there’s little to stop them.
“The moment people don’t feel it is in their interest to act democratically, democracy is just lost,” said Michael Miller, a democracy expert at George Washington University. “The Constitution cannot save it. It’s not going to leap out of its case in the National Archives and start attacking people.”
If there’s any good news that sprang from Wednesday’s violence, it’s that for now, the US electoral system has withstood the immense strain Trump placed on it. Despite hordes of Trump supporters invading the Capitol and derailing the Congressional certification of Joe Biden’s win, Congress eventually discharged its duty and finished tallying the Electoral College’s votes in the wee hours of Thursday morning.
It appears that a peaceful transition of power will take place on Jan. 20, despite Trump’s attempts to harangue Republican swing state officials to “find” thousands of votes for him and reverse the result.
But as the broken glass is still being swept from the Capitol, fear lingers in the air about what could happen in the future, given how far Trump, his congressional allies, and his supporters were willing to go to attempt to stay in power this year.
The system, though it survived, feels more fragile than ever.
The laws guiding Congress’ role in presidential elections are arcane and confuse even legal experts. Each state conducts its own election, determines a winner, and then sends the winner’s slate of electors to the Electoral College to vote in mid-December. Congress, presided over by the vice president, ceremonially counts those votes in early January, ahead of inauguration.
In a few past instances, members of both parties have lobbed objections during this process. But these efforts stayed small — never garnering the support of the losing candidate — unlike this year, when Trump pressured Republicans and Vice President Mike Pence to hijack the count to prevent Biden from becoming president.
There are at least two ways for a president who wishes to stay in office despite losing the election to subvert that process through Congress. One is to convince governors or legislatures in some states to send the votes of a competing slate of electors who support him or her to Washington, and then have a majority of Congress choose to acknowledge that slate. That couldn’t happen this week because no state legislature or governor, despite considerable pressure from Trump and his allies, chose to take that step.
“Yesterday would have looked very differently if the state legislatures had done what President Trump asked and had attempted to back the alternative electors,” said Edward Foley, an election law expert at Ohio State University.
Another way to attempt to overturn the result would be for a majority of lawmakers in both chambers to vote to object to some states’ results, bringing the winning candidate’s total below the 270 electoral vote threshold for victory. The 12th Amendment says the House of Representatives would then gather to elect a new president.
That scenario did not happen on Wednesday because there was not a majority in either chamber that wished to take that step. But that doesn’t mean it couldn’t happen in the future.
“One of the flaws we are facing here is the possibility that Congress could turn our system on its head and a political party could hijack the results,” said Trevor Potter, the founder of the Campaign Legal Center nonprofit.
Potter, a former George H.W. Bush appointee, and Charles Fried, who was solicitor general under Ronald Reagan, are both advocating for legal reforms to prevent such a scenario in the future. At the top of the list is abolishing the Electoral College, which would mean the presidential candidate with the most total popular votes across the country would win the presidency. That would likely mean margins of victory in the millions of votes, making it harder for losing candidates or their allies to try to change the result.
“It’s much easier to put pressure on 11,000 votes,” Miller said, referring to the margin of victory for Biden in Georgia. “It’s much harder for someone like Donald Trump to make 7 million votes go away.”
Abolishing the Electoral College would require amending the Constitution, however, a daunting political task that would entail convincing two-thirds of Congress to propose the measure and three-fourths of the country’s state legislatures to ratify it. Republicans, who have only won the presidential popular vote once in 30 years, would be almost certain to fiercely fight that reform.
There is one law that Congress could change without such an overwhelming majority: the Electoral Count Act, which Congress passed in 1887 after the disastrous and nearly failed election of 1886 to clarify the body’s role in counting Electoral College votes.
Foley hopes Congress will pass “a new Electoral Count Act for the 21st Century,” that would modernize the process for post-election litigation and set clearer rules for what counts as a legitimate competing slate of electors from a state. That reform could prevent a state from claiming it had a failed election as a pretext to help elect someone who didn’t actually win the state.
There’s only so much legal clarification would do, however, if the country is faced with another scenario where a president does not want to let go of power and finds majority support from Congress in that quest.
“At some point the peaceful transfer of power and a democratic system kind of presupposes that it’s going to happen,” said Lawrence Douglas, a law professor at Amherst College who wrote a book about what would happen if Trump did not concede. “You can’t just build a system of law that’s going to guarantee it.”
Some of the Republicans who objected on Wednesday claimed they did not want to overturn the results but to set up a commission to adjudicate claims of fraud. This was a pretext, however, given that the courts, not Congress, are the proper forum for adjudicating fraud, and a vote to object counts as rejecting the state’s vote no matter what your reasons.
“The voters, the courts, the states — they’ve all spoken,” GOP Senator Mitch McConnell said in a blistering speech shortly before Trump’s supporters breached the Capitol. “They’ve all spoken. If we overrule them, it would damage our republic forever.”
Experts are still trying to take stock of what happened, and plot a course away from danger.
“Do I think anybody should kid themselves that somehow things couldn’t have been even worse and couldn’t be worse in the future?” Absolutely not,” said Rosa Brooks, a professor of law at Georgetown Law and a former Pentagon official. “Whether this presages some kind of inevitable further erosion of Democratic norms in the future is up to us.”
For some political scientists, the siege was the culmination of years of worrying signs for American democracy — from increased polarization to widening inequality and increasing distrust in institutions. The Center for Systemic Peace, which received US funding for decades to rank governments’ stability, recently downgraded the United States from a democracy to a “anocracy,” due to the “executive’s systematic purge of ‘disloyalists’ from the administration, forceful response to protest, vilification of the main opposition parties; and undermining public trust in the electoral process.”
Brooks, who cofounded the Transition Integrity Project, a bipartisan group of experts and former elected officials that gamed out scenarios in preparation for a contested election, said she’s learned in her line of work that things can go bad quickly.
“I spent a good chunk of my career working in and studying societies where things went terribly, terribly wrong,” Brooks said of her research on failed states. “Rwanda genocide, civil wars. I think one of the most dangerous political mythologies held by any group of people is the ‘that can never happen here’ myth.”