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 bill, dubbed the Presidential Election Reform Act, passed in a mostly-party line vote with a handful of GOP defections. The final vote, coming in at 229–203, included the support of 221 Democrats and nine Republicans.
During the aftermath of the 2020 election, when Trump was trying to determine how to move forward on his claims of widespread election fraud, lawyer John Eastman was among the attorneys in Trump’s inner circle who supported an effort to refuse to certify electoral slates from states where concerns of election fraud were most prevalent.
The 12th Amendment
Eastman’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.
Ultimately, the effort was unsuccessful, as Pence refused to use his role to deny certification of contested electoral slates.
By Joseph Lord