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Why Fixing an 1887 Law Could Prevent a Jan. 6 Repeat

Then-Vice President Mike Pence speaks during a joint session of Congress to count the Electoral College votes of the 2020 presidential election in the House Chamber in Washington, DC., on Jan. 6, 2021. 

Then-Vice President Mike Pence speaks during a joint session of Congress to count the Electoral College votes of the 2020 presidential election in the House Chamber in Washington, DC., on Jan. 6, 2021. 

Photographer: Saul Loeb/AFP/Getty Images

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A bipartisan group of senators wants to modernize the Electoral Count Act, the 1887 law that guides the final step of US presidential elections. Obscure and rarely discussed, the law suddenly became relevant when then-President Donald Trump and his supporters tried to block the US Congress from certifying Joe Biden’s victory in the 2020 election. The senators say that reforming the law will deter future attempts to overturn an election. 

Under the US Constitution, when Americans select a presidential candidate, they are technically voting for a slate of electors who have pledged to support that choice. The Electoral Count Act directs when and how Congress counts the electors’ votes, how to resolve any disputes over them, and who is to preside over that process. The law was passed in response to the presidential election of 1876, in which Samuel Tilden, a Democrat, and Republican Rutherford B. Hayes both claimed victory based on contested results in three states and Congress had to decide between competing slates of electors. After much behind-closed-doors politicking, and the appointment of a federal election commission to investigate the dispute, Hayes -- who had lost the popular vote -- was declared the winner by a narrow Electoral College margin.