The Republican election lawyer Ben Ginsberg is calling on congressional Republicans to update the law that Donald Trump tried to manipulate to steal a second term.
The Electoral Count Act, which governs how Electoral College votes are tallied, is vulnerable to partisan attacks, as legal observers and Democrats have been saying for months.
On Sunday, Ginsberg argued that the 1887 law’s vague wording and application could be bad news for his own party.
“Republicans should not deceive themselves by thinking the current state of this law automatically works to their advantage,” he wrote in National Review. “While many of them used it offensively on January 6, 2021, they did so because they were trailing in Electoral College votes.”
Vice President Mike Pence resisted Trump’s efforts to insert himself into the Electoral College vote-counting process in 2020, despite Trump and others’ work to exploit the Electoral Count Act to Trump’s advantage.
Ginsberg argued that the shoe could soon be on the other foot.
“For starters, a Democratic vice president will be presiding over the Senate when the Electoral College votes are opened,” he wrote, referring to Vice President Kamala Harris.
“Suppose Trump runs again, and wins. Now, suppose Vice President Harris believes that Trump’s reelection represents an existential threat to the county and does what Trump couldn’t persuade Mike Pence to do.”
Other Republicans calling for changes to the Electoral Count Act have used similar arguments.
“They could have Vice President Harris sitting there, using the same kind of arguments to challenge the results of the next election,” Zach Wamp, a former Republican congressman from Tennessee and co-chair of Issue One’s “ReFormers Caucus,” told TPM last month.
Rep. Liz Cheney (R-WY), vice chair of the Jan. 6 committee, told The New York Times Thursday that “the 1887 Electoral Count Act is directly at issue” and that the committee would be recommending changes to the law.
Ginsberg is perhaps best known for his work representing the George W. Bush campaign during the 2000 Florida recount, but since last year he’s frequently challenged Trump and other Republicans’ baseless claims of widespread voter fraud.
He also filed a friend-of-the-court brief in November 2020 defending the votes of tens of thousands of Texans who’d voted at drive-thru polling places, and whose votes Texas Republicans wanted to cancel.
In September, Ginsberg and the Democratic election lawyer Bob Bauer advertised a pro-bono legal service for election administrators.
In National Review, Ginsberg laid out a series of points that Congress should “define clearly,” including “the vice president’s role,” “whether the threshold for objecting to electors should be increased to more than one member from each chamber,” and “grounds for congressional objections to electors so that only questions of fraud or bribery meet the threshold and disagreement with the popular-vote results does not.”
“Neither Donald Trump nor members of either party can accurately predict what will be to their advantage the next time the ECA becomes crucially relevant,” he wrote. “Providing clarity would be in the nation’s interest. The time to act is now.”
