The House of Representatives on Sept. 21 passed an election law bill designed to address President Donald Trump's legal efforts to decertify some electoral slates in 2021.
The 12th AmendmentEastman’s position—that Vice President Mike Pence had the power under the 12th Amendment to reject some electoral slates—was heavily taken to by Trump, who tried to convince Pence to refuse to certify some electoral slates.
Specifically, the effort centered on an ambiguous line in the 12th Amendment, passed after the near-crisis of the election of 1800 which saw Congress go through dozens of ballots before finally declaring Thomas Jefferson the winner.
That line reads "the President of the Senate [i.e., the vice president] shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted."
Eastman proposed that Pence could legally refuse to count the ballots of states deemed most at risk of election fraud.
Opponents of Trump's 2021 effort have said that the Constitution only intends for the vice president's role in the Jan. 6 certification of electoral slates to be a "ceremonial" one, while proponents of the effort have pointed to similar events in the past, particularly in regards to the presidential elections of 1800, 1876, and 1960. However, there is no hard-set legal consensus on the issue either way.
'Opening the Door to Mass Litigation'Though there is no consensus among legal experts as to the lawfulness or validity of the effort, altering the electoral certification process has been a key focus for many of Trump's adversaries during the 117th Congress. The focus on the issue has intensified since the beginning of the Jan. 6 Committee hearings, which presented Trump's efforts as criminal and undemocratic.
The bill passed by the House on Wednesday was sponsored by Rep. Zoe Lofgren (D-Calif.) and co-sponsored by outgoing Rep. Liz Cheney (R-Wyo.). Both members serve on the House Jan. 6 panel.
In addition to naming the vice president's role in electoral certification a ceremonial one, the bill would up the number of lawmakers needed to sustain an objection to a state's reported electoral slate.
Currently, a vote on the validity of electoral slates can be forced by a single member of the House and a single member of the Senate, causing the House and Senate to have to vote to sustain or strike down the objection. Under the new bill, that figure would be upped to one-third of the House and one-third of the Senate before a vote on an objection could move forward.
Cheney fell into the camp of those who claim the role is purely ceremonial, saying on the House floor in Washington that the bill would guarantee that Jan. 6 is “as the constitution envisioned, a ministerial day.”
Further, Cheney said that it will “ensure that in the future our election process reflects the will of the people.”
“The American people are supposed to decide an election, not Congress,” Lofgren said, echoing Cheney.
Jan. 6 panel member Rep. Jamie Raskin (D-Md.) portrayed the bill as a necessary one to update the rules of the Electoral College, which has long been targeted by Democrats, who often portray the system as undemocratic. The party has long hosted calls for the total abolition of the college and movement to a popular vote basis for electing the president.
However, most House Republicans are critical of the bill.
House Administration Committee Ranking Member Rodney Davis (R-Ill.) said that the bill is “opening the door to mass litigation.” In addition, Davis argued that the legislation tramples state sovereignty over election law.
Davis added that Democrats are “desperately trying to talk about their favorite topic, and that is former President Donald Trump.”
In his opening speech on the bill delivered on the House floor, Davis argued that, despite efforts to present the contrary perspective, the 12th Amendment has long been used by members of both parties to ensure the legitimacy of an election's results.
Davis describes the mechanism as one that preserves the checks and balances of the three federal branches on each other.
Contrary to the position espoused by Democrats, Davis said, lawmakers challenging election results when they see something suspicious "is not an affront to democracy—it's democracy in action."
Democrats, by contrast, spent much of their time speaking on the floor by relating the bill to the events of Jan. 6 and the future of American democracy.
In a statement indicative of this approach, Rep. Steny Hoyer (D-Md.) insisted that the bill was not a partisan issue, but "a democracy issue."
"There are ambiguities in our electoral system and they can jeopardize our democracy—that's what this bill is about," Hoyer added later.
The party also spent a great deal of time applauding Cheney for her role in pushing for the bill.
12th Amendment Issue Remains ContestedJohn Eastman, the Trump attorney who was most supportive of the 12th Amendment scheme, disagreed about the legality of the effort.
Eastman told The Epoch Times before the vote that discussing the role of the 12th Amendment out of the context of the situation on the ground at the time is mistaken.
He noted that the Constitution gives states the power to make their own election laws and determine the manner in which states will choose their electoral slates. In every U.S. state at this point, the popular vote is the method for choosing this slate.
But Eastman also pointed to several last-minute changes by secretaries of state, executive orders from governors, and county clerks that changed or overshot the statutorily-required, legislature-approved legal regulations like deadlines and signature verification.
"Those election codes were violated, there's no dispute about that," Eastman contended. "That means the election was not constitutionally conducted. How big the impact was is hard to say."
He added, "It was rather extraordinary, the illegality of it."
The use of the 12th Amendment and the vice president's role, Eastman argued, was a last resort—albeit a legal one—stemming from the unwillingness of courts to consider the legal issues involved and the unwillingness of governors to call legislatures into special sessions to address the concerns.
Finally, Eastman turned to the issue of the 12th Amendment.
"It seems a little odd that [the Founders] would waste a whole amendment on just a ceremonial thing," Eastman argued, shunting the claim that the vice president's role is merely ceremonial. "That's not the way the Founders typically operate."
The Current Constitutional SystemUnder the current constitutional system, Congress can only choose the president in the event of a three-way or more tie with no single candidate winning the majority of the votes. Even in this case, voting is taken up by the House of Representatives by state rather than by simple majority, limiting the ability of larger states or factions in Congress to determine the president by numbers alone.
This role has only fallen to Congress on a handful of occasions, all taking place in the 19th century. Since the rise of the two-party system, such pluralities are astronomically unlikely for a third candidate in the modern world.
In view of this fact, Eastman argued, the framers of the 12th Amendment intentionally wrote it to ensure that the states, the courts, and the vice president, not Congress, had the final say in determining what to do about a contested election.
"If there's a dispute, somebody's gotta resolve the dispute," Eastman said, citing the work of other legal scholars who have said that the arbiter in such an event was intended to be the vice president. This ensures that "a member of the executive branch [chooses] the president" rather than making the executive "subservient to Congress."
On Track for PassageWith its passage through the House, the bill will now go to the Senate for consideration.
Though it will likely see some reworking in the upper chamber, enough Republicans have signed onto similar legislation to overcome the 60-vote filibuster threshold, making it possible that the bill will pass.
President Joe Biden has also expressed support for election law reforms in the past.