Will January 6, 2025 Be Like January 6, 2021? Probably (Hopefully) Not

There’s a lot of doom-and-gloom out there about the chaos of the upcoming election, but there’s also good news as well—some of which has come from an unlikely place: the U.S. Congress. Since the 2020 election, Congress passed an extremely important law that will hopefully help to prevent some of the shenanigans that occurred up to and on January 6, 2021.

It starts, of course, with the aftermath of the 2020 presidential election, where we saw a concerted effort to overturn the results. President Trump and his advisors, as alleged in a federal indictment from last year, sought to obstruct and overturn the results of the election through the use of false slates of electors from seven states. The idea was to give the votes from these “alternative” electors to the Vice President, who—according to the conspiracy—would count those votes and award Trump the election. This plan failed for multiple reasons, including Vice President Pence’s unwillingness to participate in the scheme, and Congress ultimately declared Joe Biden to be the lawful winner of the election. But before that happened, Congress entertained “objections” to the electoral votes from several states, giving the controversy a legal veneer. Essentially, Trump and his allies were able to use the procedures from an arcane federal law from 1887, the Electoral Count Act, to muck up the electoral vote tallying process on January 6, which made many people think that there could be a legal basis for overturning the election.

Trump’s false claims of election fraud pushed American institutions almost to the brink. Could this happen again in 2024?

Thankfully, the answer is that it’s much less likely. In 2022, Congress updated that 1887 law in a bipartisan fashion. The Electoral Count Reform Act made the process of objecting to a state’s electoral votes much more difficult and also cleared up several ambiguities regarding Congress’s procedure for tallying the electoral votes on January 6.

Congress had enacted the original Electoral Count Act of 1887 in the wake of the hotly contested 1876 election between Rutherford Hayes and Samuel Tilden. The law created extensive procedures for how Congress will count electoral votes from the states. Under that Act, it took just one member of the House of Representatives and one member of the Senate to jointly object to a state’s electoral vote submission. An objection then required each House to retire to its chambers to consider the objection. That’s what occurred on January 6, 2021, and it’s that process that Trump and his supporters sought to exploit when they challenged the results in seven states. Trump also argued that Pence—who, as Vice President, presided over the joint session of Congress that certified the election—had the discretion to reject a state’s votes.

The 2022 update to the law made several important changes. It raised the threshold for objections to 20 percent of each House, meaning that 87 members of the House of Representatives and 20 Senators would have to join an objection to even allow it to move forward. The law also clarified that the Vice President’s role is “strictly ministerial”, and provided other rules on what Congress should do if it receives competing slates of electors from a state.

Some people are still worried in spite of Congress’s efforts to protect our democratic processes. Harvard Law Professor and author Lawrence Lessig actually co-wrote a book titled How to Steal a Presidential Election about his concerns. In it, he recounts a variety of strategies that anti-democratic forces could use to contest this year’s election results. I spoke with Professor Lessig about his book on the Democracy Optimist podcast last April (listen here!). The first question I asked him was why he and his co-author, Matthew Seligman, were giving anti-democracy forces the blueprint for how to object this year! Their goal, of course, was to expose those vulnerabilities so we can address them ahead of time.

Even though Congress tackled some of the problems from the last election, Lessig highlighted one particular scenario that he was worried about this year: a legislature-approved alternative slate of electors. In theory, a state legislature, after raising concerns about the results of the election in their state, could approve a resolution or law that installs one slate of electors over the other, regardless of the outcome in the state. Lessig worried that the Supreme Court’s decision in Chiafalo v. Washington (2020)—a case that Lessig argued before the Court about so-called “faithless electors”—would allow the practice. In the Chiafalo decision, the Supreme Court allowed states to punish or remove electors who choose someone other than that state’s winner. It also noted that Article II of the Constitution gives states the authority to appoint electors in whatever manner their legislature directs and that this direction has the “broadest power of determination” for selecting electors. Lessig worried that this language potentially provides enough latitude for state legislatures to (constitutionally) overturn their state’s results.

My own view is that there would be serious constitutional due process concerns if a state legislature sought to undermine the results of the election after November 5. Yes, the Constitution gives states wide control over appointing their electors, so in theory, a state could likely take away the right to vote for president before the election and simply declare which candidate will receive the state’s electoral votes. That’s actually how most states chose their electoral college votes at the nation’s founding. But it’s a much different situation if a state lets the voters choose and then takes that right away after the fact because it doesn’t like the result (though a resolution introduced in West Virginia this year that implies the legislature should not recognize a Democratic winner of the election is utterly shocking). I’m not convinced that even this Supreme Court—with its harmful rulings on voting rights—would allow a state to overturn the certified results of its election simply because the legislature preferred the other candidate.

But Lessig’s overarching point is well taken: we must be vigilant to any potential attacks on the results of this election. Thankfully, Congress actually addressed the ways that Trump and his supporters exploited the law in 2020. And the Supreme Court did stand up for the democratic results in 2020 by refusing to consider the unsupported and unprecedented lawsuits that Trump’s supporters sought to bring. Hopefully, fidelity to democracy will once again win the day this year.