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Trump-Backed Insurrection Proves Election Protection Reforms Are Needed
The plot to steal the 2020 presidential election was eye-opening. Now Congress must act.
Jul 25, 2022
The House Jan. 6 committee hearings have raised two overarching questions. The first: Will the Justice Department indict and prosecute former President Donald Trump for leading a criminal conspiracy to steal the 2020 presidential election? The second: Will Congress enact essential reforms to protect our democracy from a future presidential coup attempt or insurrectionist attack on the U.S. Capitol?
The first question can ultimately be answered only by Attorney General Merrick Garland. Congress is now considering the second.
A bipartisan group of senators led by Sens. Susan Collins, R-Maine, and Joe Manchin, D-W.Va., proposed two measures on Wednesday that would significantly reform flawed 19th-century laws that still govern U.S. presidential elections. Changes must be made to the Presidential Election Day Act of 1845 and the Electoral Count Act of 1887, into which the 1845 Act was incorporated.
The proposed bills open the door for the Senate to address the grave problems in these laws -- problems alarmingly dramatized by Trump's attempted presidential coup. It is increasingly clear that loopholes in the 1845 Act and problems in the Electoral Count Act were at the heart of Trump's effort to steal the 2020 election.
The Collins-Manchin proposal needs to be carefully vetted to ensure it will prevent future presidential coup attempts. It will also need 10 Republican senators to oppose a filibuster and no opposition from Senate Republican Leader Mitch McConnell to get through the Senate.
In addition, the Jan. 6 panel's vice chair, Rep. Lynn Cheney, R-Wy., and senior member Rep. Zoe Lofgren, D-Calif. issued a statement late Wednesday that the panel would be proposing its own bipartisan fix for repairing the Electoral Count Act.
Congress has the power, under Article 2, Section 1, Clause 4 of the Constitution to determine when presidential electors are chosen. The 1845 Act sets the official quadrennial presidential Election Day on which voters chose the electors. It also provides that if a state "failed to make a choice" on Election Day, then the state's presidential electors may be chosen "in such a manner as the legislature of such State may direct." There is no definition of what "failed to make a choice" requires.
This means a state legislature could simply decide that voters "failed to make a choice" based on allegations of widespread voter fraud -- or any other grounds the legislature chooses. It could then substitute its own choice of presidential electors for those voters chose on Election Day.
Sound far-fetched?
It was -- until Trump and coup strategist John Eastman tried to use that loophole to overturn Joe Biden's win.
We heard at the House Jan. 6 committee's June 23 session how the planning and plotting unfolded. Former acting Attorney General Jeffrey Rosen and former acting Deputy Attorney General Richard Donoghue testified about a letter that Jeffrey Clark, then acting head of the Justice Department's Civil Division, pressed them to sign.
The letter claimed -- falsely -- that the Justice Department had identified significant concerns about voting irregularities in multiple states, including Georgia. Once the letter was signed, Clark, working on behalf of Trump, planned to send it to Georgia's governor, House speaker and Senate president pro tempore -- all Republicans.
To solve this fabricated problem, the letter proposed that a special session of the Georgia Legislature be called. It would then "evaluate the irregularities" and "take whatever action is necessary" to ensure that the correct slate of electors is sent to Congress -- that is, the Trump slate, even though Biden won the state.
The letter cited the loophole in the 1845 Act as the basis for the Georgia Legislature to override voters and choose its own presidential electors.
Most critically, the letter cited the loophole in the 1845 Act as the basis for the Georgia Legislature to override voters and choose its own presidential electors. The letter said the act "explicitly recognizes the power that State Legislatures have to appoint electors" when voters "failed to make a choice" on Election Day.
Clark's proposed effort also involved the Justice Department sending similar letters to other battleground states with Republican-controlled legislatures.
Rosen and Donoghue flatly refused to sign the letter -- and a constitutional crisis was averted.
The blueprint, however, set forth a path for future coup plotters to follow. They would not even need the Justice Department. State legislatures could do it themselves -- and many in key battleground states are now controlled by Republicans.
The 1845 Act's "failure to choose" loophole is a ticking time bomb. Reform is essential to remove it and take away state legislatures' ability to override the voters' choice.
A second serious problem in the 19th-century laws was illustrated by Trump's January 2021 phone call to Georgia Secretary of State Brad Raffensperger. Trump spent an hour pressuring the state official to change Georgia's presidential vote count. "All I want to do is this," Trump said in the call. "I just want to find 11,780 votes, which is one more than we have because we won the state."
In other words, Trump tried to get Raffensperger to rig the vote. Raffensperger refused.
Trump's call certainly appears to violate both federal and Georgia state law. But this case shows how a rogue secretary of state or other empowered state official could certify the wrong presidential electors or refuse to certify any electors.
A presidential nominee adversely affected by such an action must be able to effectively challenge this in the courts. Precise reform provisions in the Electoral Count Act must be clearly spelled out to avoid any vagueness that could create ambiguities -- and thus create new opportunities to overturn a presidential election.
The reforms must provide a specific cause of action to challenge a wrongful certification or a failure to certify. They should also provide the right to expedited federal court review.
And the adversely affected presidential candidate must be provided with timely relief, because a new president is required to be certified on Jan. 6, only two months after Election Day. This does not leave much time for legal proceedings.
The plot to steal the 2020 presidential election was eye-opening. Congress must act now to ensure that any future attempt to steal the presidency does not succeed where this first one failed.
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Voting Rights Fight Must Be Won to Conquer GOP 'Big Lie'
Trump set off a disastrous domino effect in 2020. Here are some of the biggest inaccuracies and myths being told about the Senate's vital voting rights legislation.
Jan 19, 2022
The moment of truth on voting rights has arrived.
The Senate has, finally, begun debate on voting rights legislation. Republicans were not able to use the filibuster to block this vital deliberation--as they did four times last year. Democrats have achieved this because Senate Majority Leader Chuck Schumer, D-N.Y., used a little-known procedure that allowed the Senate to send the new voting rights bill--passed in the House last week--directly to the Senate floor.
The Senate's key voting right bill has majority support, but it will require a modification of the filibuster rules--something that has routinely been done more than 160 times since 1969.
The new legislation combines the two major voting rights measures: the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. All 50 Democratic and independent senators served as co-sponsors of the two bills. Though news analysts and commentators have declared the legislative fight over before it started, Senate supporters must do whatever it takes to pass the legislation, just as Senate supporters did to pass momentous civil rights legislation in the past. This battle is not over until it is over.
These protections are crucial--state legislatures passed a wave of voter suppression and election sabotage laws last year, and even more of these laws are expected in 2022.
Former President Donald Trump's false claim that the 2020 election was stolen set off a disastrous domino effect at the federal, state and local levels. Americans are now being regularly fed lies about election integrity--lies by elected officials, GOP leaders and Republican senators. On top of these lies are more layers of inaccuracies, falsehoods and myths that add to the confusion.
The Senate's key voting right bill has majority support, but it will require a modification of the filibuster rules--something that has routinely been done more than 160 times since 1969. The support of a simple majority is all that is needed to pass this modification, but Sens. Joe Manchin, D-W.Va., and Kyrsten Sinema, D-Ariz., continue to oppose modifying the rules. Without their support, historic voting rights legislation will fail.
Yet, just last month, Manchin and Sinema had no trouble voting to modify the filibuster rules to allow debt ceiling legislation to pass by a majority vote.
Manchin and Sinema insist they support voting rights. But if they maintain their current position, they are essentially supporting every state voter suppression law enacted last year, which the Senate bill would override. They are also supporting every state law that empowers partisan GOP election officials to rig the outcomes of federal elections.
In fighting for the historic Civil Rights Act of 1964 to overcome Jim Crow laws, the bill's supporters recognized it was of overriding importance to the country. They forced opponents to filibuster for 60 days before they finally broke the filibuster and passed the legislation.
If opponents of today's voting rights legislation want to block it by a filibuster, they should be forced to actually filibuster--take the Senate floor and talk--as the Civil Rights Act opponents were forced to do in 1964. Meanwhile, proponents must use the debate to demonstrate to the nation the seminal importance of winning this fight.
Trump's dangerous, incessant Big Lie has, in the days, weeks and months since the 2020 election, fostered other deceits and fantasies--from voter suppression laws disguised as "election integrity" measures to a GOP bait-and-switch scheme that uses talk of reforming the Electoral Count Act to distract from and kill voting rights legislation. Here are some of the biggest:
Republican legislatures are passing new voting laws in the name of 'election integrity'
Nothing could be further from the truth.
The 2020 presidential election had record turnout without a shred of evidence that there was any impactful fraud. Top Trump government officials found that the 2020 election was "the most secure in American history."
But this has not stopped Republican-controlled state legislatures from citing "election integrity" to justify laws designed to suppress voting. These laws make it much harder to vote by mail and early in person--the two keys to 2020's huge turnout.
These new state laws clearly appear aimed to deter key Democratic constituencies, including people of color, urban voters and the young, from voting.
Filibuster rules are inviolate
The filibuster rules have been changed routinely.
True, the late Sen. Robert C. Byrd, D-W.Va., widely recognized as the master of the Senate rules, never supported eliminating the filibuster. But he strongly advocated changing the filibuster rules when needed, saying they "must be changed to reflect changed circumstances."
In the 1970s, Byrd twice played the lead role in doing just this. He also played the central role in creating a major exception that continues today: the budget reconciliation process.
Last month's vote to allow an increase in the debt ceiling to pass the Senate by a majority vote was just one more example of how common these exceptions have become.
Surely the right of every eligible American to vote in a fair election is, if anything, more crucial.
The filibuster protects the rights of the Senate minority
This may once have been the case, but today Republicans have weaponized the filibuster for politically partisan purposes.
Led by Minority Leader Mitch McConnell of Kentucky, Senate Republicans have repeatedly used the filibuster to paralyze the Senate to block Democratic initiatives for political, not policy, reasons.
During the Obama administration, McConnell led his Republican colleagues in using the filibuster more than ever before. McConnell made his partisan purpose clear: "The single most important thing we want to achieve is for President Obama to be a one-term president." Under President Joe Biden, McConnell looks to be continuing his practice: "One hundred percent of our focus is on stopping this new administration."
McConnell's habitual partisan use of the filibuster has been the key to making the Senate a dysfunctional institution today. This is precisely the kind of "changed circumstances" that Byrd said call for a revision of the filibuster rules.
Reforming the Electoral Count Act, rather than protecting voting rights, is the way to go
McConnell's newfound interest in "considering" reform of the Electoral Count Act is a classic bait-and-switch designed to kill voting rights legislation. Senate Republicans have previously shown little, if any, interest in addressing the issue.
Though the electoral count process does need to be repaired, repairing it would not be a substitute for the pending voting rights legislation. It would do nothing to override the 34 voter suppression and election sabotage laws passed in 2021--with many more under consideration in legislatures this year.
The Electoral Count Act applies only to presidential elections, not congressional contests. It does nothing to protect the right to vote and nothing to prevent partisan election officials from rigging the outcomes of elections.
Biden went to the heart of the voting rights battle last week when he said, "We have no option but to change the Senate rules."
The decision senators make will determine whether our democracy and the right to vote will be preserved--or whether Trump's Big Lie will continue to contaminate the country
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Adoption Does Not Remove the Need for Access to Abortion
Giving a baby up for adoption carries its own hardships, including for the child involved, and every woman should be able to decide whether she wants to take that on.
Dec 28, 2021
I was born on Jan. 11, 1973, 11 days before Roe v. Wade decriminalized abortion across the United States. As a self-described politically aware, adopted teenage girl, this was a chilling factoid for me. Phew, I always thought. Made it. Of course, it was also insignificant, because I was born, adopted and raised in New York, where abortion up to the 24th week of pregnancy had been legalized in 1970, long before I was conceived.
Adoption isn't simple on any level, and suggesting it can be a replacement for abortion reinforces the misconception that it is.
Women with unwanted pregnancies have always been able to give their children up for adoption, as my mother did. Yet this isn't the choice every woman has wanted to make, which is why legal abortion is also a necessary option. I know because I've experienced all sides of this issue as both an adoptee and a woman who decided to have an abortion. So I was outraged when Supreme Court Justice Amy Coney Barrett earlier this month resurrected the canard that adoption removes the need for access to abortions.
During oral arguments over Dobbs v. Jackson Women's Health Organization, which challenges the constitutionality of a 2018 Mississippi law banning abortions after 15 weeks, Barrett brought up state safe haven laws, which protect from prosecution parents who anonymously abandon newborn babies at designated places like hospitals. Barrett said Roe and another court precedent affirming the right to an abortion "emphasize the burdens of parenting." So, she asked, "why don't the safe haven laws take care of that problem?"
Barrett didn't seem to notice the irony in her comment implying that women don't still need the option to have an abortion. She is an adoptive mother of two and biological mother to five more--so she exercised her choice to bring new children into her family in two ways even as she seems to want to deny choice for biological mothers who aren't in a position to carry a baby to term. And to suggest that a woman be forced to continue with an unwanted pregnancy ignores that giving up a baby for adoption and choosing to adopt a child are not decisions to be made lightly. They carry their own hardships and even traumas, including for the child involved, and each individual should be able to decide whether she wants to take that on.
Being adopted meant I didn't have great answers when people asked me where my real parents were and when they were coming to get me. My birth mother's decision to give me up was nothing but a mantra that played over and over in my head: She was a teenager, she couldn't keep you, she was a teenager, she couldn't keep you.
The worst question I was ever asked was meant to be rhetorical: Wasn't I glad I wasn't aborted? I couldn't help but think about the answer, though. Was I glad? Well, that depended. At 15, for example, I wasn't sure. Most of my life until that point, I had been angry at being left and angry at being taken, even if I couldn't articulate it. My parents didn't understand why I was so unhappy. They thought I was ungrateful and difficult. After all, I had everything I needed.
Nobody knew yet about the trauma of adoption. But I felt it.
I also came to know the trauma of an unwanted pregnancy, which I experienced at 23. I can spin the situation two ways: I was single and unemployed. This is true. It's also true that I was engaged to a Parisian and I was a graduate student at Harvard.
Either way, I had been using birth control to prevent an unwanted pregnancy since I knew neither of us was ready for children and that I wouldn't be able to carry a baby to term and then surrender it. But because I'd been born with a kidney condition and got chronic UTIs, I took my diaphragm out early one night because it was hurting me. Burning. Stinging.
How did you let this happen? the Parisian hissed through the phone when I told him the news.
How did I? I'd known when I took it out that I was taking a chance, but it hurt so much I didn't care. Couldn't care. To him, that made it my fault. I let it happen.
With no support, it was a painful decision but an easy one. I was raised in New York City by Democratic, pro-choice parents. I knew I was not prepared for single parenthood.
I went to my appointment without the Parisian. He stayed in France. He didn't offer money. He didn't comfort me. And I buried it so deep I forgot about it for years.
At the time, though, I kept hearing in my head: Aren't you glad you weren't aborted?
A friend suggested point-blank that I continue with the pregnancy. Maybe you should have it and give it up, she said. Make a family for someone else.
No. Just no. I couldn't give birth and then give my baby away.
Why not? She did that for you.
Did she do that for me? I couldn't say. I'd always wondered why my birth mother decided not to have an abortion. Was it unsafe? Was she afraid to talk to her mother?
By the time I reunited with my birth mother three years later, thanks to the New York state adoption registry, I'd long since broken up with the Parisian. When I met her, I asked her why she chose adoption for me.
I didn't choose anything. Her eyes were cast down. I wanted to keep you. It was her parents who'd forced her to give me up.
Barrett's suggestion that women who find themselves unintentionally pregnant can simply carry their babies to term and then easily surrender them because they are protected by safe haven laws are forgetting that some women and girls who want to keep their children are forced into giving them up either by their families or by socioeconomic or other circumstances, causing them irreparable pain and loss. Adoption isn't simple on any level, and suggesting it can be a replacement for abortion reinforces the misconception that it is.
I love my life now, so of course my current answer is that I am glad I wasn't aborted. But I do wish my mother had been allowed to make her own decision, even if that decision had resulted in an abortion or better use of birth control so I'd never been conceived in the first place. I wish for a world where women and girls, their bodies, their babies and their choices are not left to the courts to be batted around like badminton birdies. I wish for a world where no woman has to surrender a baby unwillingly. I wish my mother had felt empowered, not shamed.
Now I teach my daughters what I wish she had been taught: It's their bodies, their rules.
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