Lessons for Our Elections from the January 6 Hearings
The hearings exposed structural flaws in our republic. Here’s how to fix them.
By Lauren Miller, Harry Isaiah Black, Wendy R. Weiser, and Daniel I. Weiner
Throughout nine hearings this summer and fall, the House Select Committee to Investigate the January 6 Attack on the United States Capitol detailed an unprecedented effort to overturn the 2020 election, culminating in an assault on the seat of American government. This investigation, one of the most consequential Congress has carried out in decades, has already facilitated a public reckoning with the attack on our nation’s democratic institutions. The committee is expected to release its final report next week. But while its work is drawing to a close, the work Congress must do to act on its findings has only just begun.
The evidentiary record assembled by the committee and other public information reveal significant vulnerabilities in our electoral system. These include intense pressure campaigns on federal and state officials to meddle in or overturn election outcomes, threats and harassment directed at election officials and workers, efforts to tamper with election infrastructure and voting equipment, vigilantism by people seeking to influence or discredit election processes, ongoing state legislative efforts to manipulate voting rules and undermine impartial election administration — typically in ways that disproportionately impact voters of color — and the continued spread of disinformation.
Against this backdrop, the 2022 midterms were encouraging. Swing state candidates who ran for governor or secretary of state on election denial platforms mostly lost, often in the primaries. Voters in those states uniformly rejected their attempts to undermine democracy. And thanks to the work of election officials, law enforcement, and civic groups, violence largely failed to materialize.
But threats remain. Election denialism — the false claim that our election system is rife with fraud and that the 2020 presidential election was fraudulently decided — is still a major force in American politics. During the election, extremist groups mobilized to challenge voters’ eligibility, surveil and intimidate those using ballot drop boxes, and threaten to disrupt vote-counting processes. Online disinformation proliferated. Attacks on election officials escalated. In some instances, local officials themselves sought to thwart election certification or undermine confidence in results. Ultimately, while election denying candidates suffered high-profile losses, many won races for offices that will play a role in overseeing future elections. And new state laws have already created additional barriers to voting, disproportionately affecting communities of color, and made it easier for partisans to interfere in election administration, often based on the same falsehoods that drove the effort to overturn the 2020 result.
Congress must prevent these threats from undermining future elections. Bipartisan momentum already exists for one important step: fixing the 19th-century Electoral Count Act (ECA), which governs the process for certifying the appointment of presidential electors and tallying their votes. Election deniers exploited ambiguities in this statute as part of their attempt to thwart the peaceful transfer of power in 2020. But fixing the ECA is far from sufficient. Congress must also exercise its clear constitutional authority to enact baseline standards for voting in federal elections. These standards should ensure that all eligible voters have an opportunity to cast a ballot; guarantee a fair, accurate, and expeditious process for counting those ballots; protect against racial discrimination in voting; and guard against partisan interference. Such standards can substantially blunt the vulnerabilities in our election system that were at the core of the push to disenfranchise millions of voters and overturn the 2020 election. By removing discretion from state and local actors over major election decisions, baseline standards would also depoliticize election administration and defuse attacks on officials and workers.
This analysis outlines the electoral vulnerabilities revealed by the committee’s detailed investigation into the effort to overturn the 2020 election. It also lays out key steps that Congress should take to address those vulnerabilities.
This analysis does not provide an exhaustive summary of the committee’s record. Nor does it lay out the full array of reforms Congress should pass in light of the committee’s findings and related public reporting. For example, Congress must also rein in presidential emergency powers and deter political meddling in Justice Department investigations. It must also address other threats to democracy by, for example, putting a stop to partisan gerrymandering and shoring up campaign finance safeguards. The recommendations below are, however, the most critical steps Congress can take to ward off future attempts to thwart the will of American voters.
Pressure on the Vice President and Congress to Overturn the Vote
At the heart of President Donald Trump’s campaign to overturn his 2020 election loss was a plan involving Vice President Mike Pence, who had the constitutional role of presiding over the joint session of Congress on January 6 to count Electoral College votes. According to the plan, Pence would use his position as presiding officer to reject Electoral College slates from swing states on the fictitious ground that many of their citizens’ votes were cast or counted illegally. After rejecting the Electoral College votes, the vice president would either unilaterally declare Trump the winner or send the election to the House of Representatives, where Republicans controlled a majority of state delegations (each of which would receive one vote under the Constitution).
Concocted by lawyer John Eastman, this plan exploited ambiguities in the ECA, which does not describe the vice president’s constitutional duties in presiding over the joint session of Congress on January 6. Eastman took advantage of the law’s silence to argue that the vice president had the authority to discard electoral votes or alter the vote count, pointing in part to baseless allegations of fraud as justification. But he also relied on a novel and radical idea, known as the “independent state legislature theory” (ISLT), that the Constitution grants state legislatures near-absolute power to make the rules for federal elections — to the point that they can even ignore their own state constitutions and courts. For instance, Eastman argued for throwing out Pennsylvania’s electoral slate on the theory that state officials should not have complied with a state supreme court ruling requiring them to count mail votes received several days after the election but postmarked by Election Day.
Eastman appears to have known his plan was illegal. He even reportedly conceded that it would likely lose “nine nothing” at the Supreme Court. Nevertheless, Trump embraced it, pressuring Pence with vitriolic tweets and heated conversations in the weeks leading up to the joint session to thwart the electoral count. As the armed mob assembled on January 6, Trump told them: “I hope Mike has the courage to do what he has to do and I hope he doesn’t listen to the RINOS [Republicans in Name Only] and the stupid people that he’s listening to.” Hours later, video footage captured insurrectionists shouting “Hang Mike Pence” and threatening members of Congress as they stormed the Capitol.
Pence did not go along with the scheme, and Congress ultimately resumed the joint session. Still, 147 members objected to the election results. Some based their objections on unsupported allegations of fraud. Many others relied on the ISLT, claiming that state rules under which voting took place in 2020 did not have legislative approval, thereby invalidating votes cast under those rules and the election results. Reportedly, the lawyer for the House Republican leadership told lawmakers that the argument was unconstitutional, and Republican Conference Chair Liz Cheney found it so groundless that she dubbed it “embarrassing” and “extraordinarily destructive.” Nevertheless, it became, as another representative put it, a “fig leaf” to justify the attempt to overturn the election. (The ISLT has now taken center stage in a case currently pending before the U.S. Supreme Court.)
Reforms should clarify that the vice president’s role is primarily ceremonial and does not include the power to discard or change electoral votes, prescribe that disputes regarding the outcome of an election be settled in court before they reach Congress, and raise the threshold number of members of Congress needed to object to electoral results in the joint session and trigger a congressional inquiry (currently, an objection needs the support of just one senator and one representative to be considered). Two pending bills, the Senate’s Electoral Count Reform Act and the House’s Presidential Election Reform Act, address these issues. Both have bipartisan support.
Any federal attempt to thwart the result of a presidential election would almost certainly rely on claims that a state conducted some aspect of the voting process illegally, just like the arguments Eastman and objecting members of Congress advanced. Clear standards for all states regarding the casting and counting of votes — including, for example, standards for processing and counting mail ballots — would eliminate disputes about which state actor has authority over which electoral rules. Baseline standards would also thwart attempts to throw out election results based on criticisms of state election procedures and false claims of their illegality.
Pressure on State Officials to Interfere in Election Outcomes
Trump and his allies pressured state officials in seven swing states to change election results in his favor. In a brazen call to Georgia Secretary of State Brad Raffensperger, Trump urged Raffensperger to “find 11,780 votes” — just enough to flip the state in his favor. Witnesses appearing before the committee detailed similar attempts to pressure state legislative leaders in Arizona, Michigan, and elsewhere to “decertify” their election results.
These efforts, like the plot to pressure Pence and members of Congress, relied on bogus arguments about the legality of certain methods for casting and counting ballots. In Michigan, for instance, the Trump campaign falsely asserted that he lost due to “surprise ballot dumps” in Detroit. In reality, they were nothing more than ordinary mail ballots being added to the vote tally. Under Michigan law, unlike the law in some other states, officials cannot process mail ballots as they arrive but must wait until the morning of Election Day — which created the false impression on election night that Trump was far ahead due to in-person voting favoring Republicans in 2020. In Pennsylvania, Eastman argued to a sympathetic state lawmaker that officials should have retabulated the state’s results using a formula that would have discounted mail ballots cast and counted pursuant to state supreme court orders whose validity he disputed, as noted above.
Trump’s 2020 campaign to pressure state officials ultimately failed, but a new threat has emerged: many partisans who denied or questioned the 2020 election results ran in 2022 to become their states’ top election officials. While those running for governor, secretary of state, or attorney general in swing states lost (with one race in a recount), two dozen officials who questioned the legitimacy of the 2020 election won races for those statewide offices elsewhere. Others will be in charge of elections in critical localities in battleground states such as Nevada. These officials will play a role in election administration or the certification of votes.
In addition to clarifying the authority of federal officials, raising the objection threshold in Congress, and creating a path for disputes to be resolved in court, the law should be amended to put to rest any argument that state officials have the authority to set aside election results. The current Senate and House bills would both make the necessary changes.
Uniform standards would cut off avenues for partisan state lawmakers to interfere in election administration and vote-counting processes. In addition, such standards would block opportunities for partisans to sow doubts about the validity of elections in order to pressure state officials to interfere in the results. Wide variations in voting practices, including in how states distribute, retrieve, and process mail ballots, offer bad actors opportunities to spread unfounded skepticism about the integrity of election processes. Baseline standards would both frustrate those efforts and prevent wayward state officials from changing the rules midstream.
Harassment of Election Officials and Workers
Extremists harassed and threatened officials and workers who ran the 2020 election. Georgia Secretary of State Raffensperger testified that he and his wife were inundated with messages threatening violence, including sexual assault. Michigan Secretary of State Jocelyn Benson described hearing armed protestors with bullhorns outside of her home as she put her young son to bed. Ordinary election workers also faced threats. Trump lawyer Rudy Giuliani baselessly accused Wandrea “Shaye” Moss and her mother, Ruby Freeman — two Black election workers in Georgia — of committing fraud. Moss and Freeman subsequently suffered an avalanche of racist abuse, to the point that the FBI advised Freeman that it was no longer safe for her to stay in her home.
Their experiences are not unique. A recent Brennan Center survey, summarized in testimony to the January 6 committee, found that one in six local election officials have faced threats for doing their jobs. Nearly one in three know at least one election worker who left their job at least in part due to fears for their safety, increased threats, or intimidation.
The Brennan Center’s testimony also demonstrated that since 2020, the same myth of a stolen election that drove the insurrection has sparked a new barrage of attacks against election officials. In June 2022, the Department of Homeland Security warned that “calls for violence by domestic violent extremists” against election workers were likely to increase. The FBI confirmed as much in October, when it reported that seven states across the country saw unusual levels of threats to election workers in the lead-up to the midterms. Escalating social media threats forced a top election official in Maricopa County, Arizona, to be moved to an undisclosed location over safety concerns.
Intimidation is not only coming from private citizens. After the 2020 election, a small group of law enforcement officials, including the sheriff of Racine County, Wisconsin, pushed for the prosecution of election officials for difficult decisions they made to adapt to the pandemic. While these law enforcement officials remain far outside the mainstream, state legislators continue to pass new laws targeting election officials, including laws that impose criminal penalties for unintentional mistakes or routine activities such as promoting mail voting.
These attacks have consequences. More than one-third of local election officials surveyed by the Brennan Center in March 2022 said they are “very worried” about political interference in how they do their jobs going forward — a threefold increase from prior to 2020. Nationwide, one in five election officials plans to leave their position before the 2024 election. (That figure likely understates the problem. In South Carolina, for example, nearly half of all county election directors have left since 2020.) The people replacing these seasoned professionals are in some instances election deniers themselves.
Consistent and reliable federal funding is needed to allow states to plan for and implement proper security measures at polling places, vote-counting locations, state and local election offices, and, where warranted, officials’ homes.
Laws against harassment and intimidation should be clarified to cover election workers as well as voters. Congress should also strengthen existing protections for election officials’ privacy and security to insulate them and their families from harm.
Rigorous oversight can spur federal agencies such as the Departments of Justice and Homeland Security to fully exercise their powers to protect election officials and workers.
As a joint report of the Brennan Center and the Bipartisan Policy Center found in an examination of the 2020 election, “many of the outside pressures or threats that election officials face arise when the law is not clear.” By lessening local officials’ discretion over hot-button issues, baseline standards would make it harder for the minority of unscrupulous officials to abuse their offices and reduce incentives for others to harass or otherwise pressure the vast majority of law-abiding officials. Clarifying the permissibility of routine practices such as distributing mail ballot applications would also make it harder to threaten election officials with prosecution or other forms of retaliation for doing their jobs.
Threats to Voting Machines and Other Election Infrastructure
Following the 2020 election, President Trump instructed the Department of Justice to seize voting machines from certain state governments. His team of outside advisers also drafted an executive order directing the secretary of defense to do the same in an operation that would have been overseen by a special counsel of the president’s choosing.
While those attempts failed, public reporting has shown how election deniers across the country are emulating them, seeking illegal access to voting equipment and data in a bid to uncover fraud in the 2020 election. In Arizona, for example, the state senate’s sham audit of Maricopa County gave the company Cyber Ninjas access to millions of ballots and other election materials. The company’s mishandling of election equipment forced the county to spend $2.8 million to replace it. In Georgia, local officials allowed a forensics firm hired by Trump lawyer Sydney Powell to copy sensitive election software, which bad actors can use to develop and test malware for use in future elections. The same firm also attempted to infiltrate other swing states’ election systems. A Colorado county clerk and avowed election denier was indicted for facilitating a security breach of election equipment. And an ongoing state police investigation in Michigan has uncovered at least 11 incidents across the state in which election deniers gained or attempted to gain improper access to voting equipment and data. Many of the people leading these schemes have ties to prominent election deniers, such as Mike Lindell and Patrick Byrne, businessmen who contributed to the effort to overturn the 2020 election.
Efforts to undermine the public’s trust in election infrastructure continued in the 2022 midterms. Officials in Nye County, Nevada, and Cochise County, Arizona, moved to hand count all ballots — a slow and error-prone process that has become a focus for conspiracy theorists who question the reliability of voting machines — in violation of court orders. And officials in both Cochise County, after the general election, and Otero County, New Mexico, after the primary election, refused to certify results, citing unsubstantiated claims about defective voting machines. Both counties refused to back down until state courts ordered them to do so. Such incidents may grow more common as seasoned election officials leave office and are in some cases replaced by election deniers.
State and local officials must maintain clear standards for preventing election system breaches, such as by restricting access to equipment and records to those who need it to perform official responsibilities and monitoring for inappropriate access. To help officials implement best practices for security, Congress should provide consistent and reliable funding for tools such as cameras, keycard access systems, and tracking devices.
Routine, scientifically sound postelection audits, which include opportunities for bipartisan observation, can confirm that votes were recorded and tallied accurately and, in turn, bolster public confidence in elections. They can also preempt partisan attempts to manipulate the counting process or conduct sham audits. Congress should not only require audits but also provide consistent and reliable funding for state and local election officials to implement them.
In painstaking detail, the committee laid out how two extremist groups — the Proud Boys and the Oath Keepers — responded to Trump’s repeated calls to action by orchestrating the plot to storm the Capitol. Former federal judge Michael Luttig warned the committee that without further action, vigilantes who seek to challenge and overturn legitimate election results will continue to present a “clear and present danger to American democracy.”
Judge Luttig was right. Public reports show that vigilante threats are ongoing and taking on new forms. Vigilantes continue to harass and threaten election personnel across the country and have been caught trying to penetrate election systems to obtain proof that the 2020 vote count was fraudulent.
Beyond these efforts, a constellation of groups and individuals that subscribe to election denialism coalesced and organized to infiltrate critical aspects of election administration. The so-called Election Integrity Network recruited individuals susceptible to election denialism to serve as poll workers and poll watchers in battleground states. Leading up to the 2022 election, the network’s leaders used combative language to urge their followers to challenge voters and question routine election processes.
Thanks to the hard work of election officials, law enforcement, and civic groups who prepared for and protected against these threats, most voters had a calm and safe experience in the 2022 election. But the rise in incidents of voter intimidation and mass challenges to voter eligibility is nonetheless concerning.
In Georgia, for example, activists challenged at least 65,000 voter registrations across eight counties, claiming to have evidence — based on faulty data matching — that voters did not reside at their registered addresses. In Beaumont, Texas, poll workers interrogated Black voters about their addresses, followed them around a polling location, and stood as close as two feet behind them while they cast their ballots. Armed individuals in Maricopa County, Arizona, intimidated voters at drop boxes, compelling a federal judge to issue an emergency restraining order during early voting. In North Carolina, one county elections director who faced disruptive poll watchers called May’s primary “one of the worst elections I’ve ever worked.” Given vigilantes’ major investment in these operations, such threats will likely continue in future elections.
Many states already have rules in place to protect people fulfilling these critical roles and prevent abuse of these positions. Congress can reinforce these rules by clarifying and reinforcing federal protections against intimidation and harassment for both voters and election personnel. Congress can also provide additional state funding for implementing stronger safeguards to prevent tampering with voting machines and other election infrastructure, along with other steps to increase security.
Clear, uniform rules for how votes are cast and counted, including commonsense rules to eliminate frivolous challenges to voter qualifications and guidelines for appropriate behavior by poll watchers, will blunt the incentive for vigilantes to pressure election workers and make it harder for those who become election workers to disrupt elections or disenfranchise voters.
Restrictive Voting and Election Interference Laws
The effort to overturn the 2020 election ultimately rested on attempts to disenfranchise voters — primarily voters of color in Atlanta, Detroit, Philadelphia, and other cities in swing states. As part of their bid to overturn the election, the Trump campaign and its allies brought more than 60 baseless lawsuits, all but one of which courts summarily rejected (and even that one did not change the vote count). Many of those suits sought to invalidate votes cast primarily in communities of color. Most notoriously, the Trump campaign tried to invalidate most of the ballots cast in Wayne County, Michigan, home to Detroit. (A federal court recently ruled that a civil rights suit challenging this attempt to disenfranchise Black voters could proceed.)
The committee focused on the events that followed the 2020 vote, but throughout the election cycle, the Trump campaign pushed states to restrict ballot access — with a particular focus on thwarting pandemic efforts to expand access to mail voting — and baselessly accused predominantly nonwhite communities of fraud.
Following the election, the push to restrict voting picked up speed in state legislatures. Since the beginning of 2021, at least 21 states have passed 42 laws that make it harder to vote. In 2022 alone, seven states also passed laws that will make it easier for partisans to manipulate election administration processes. Provisions in many of these laws appear to stem directly from the same allegations made in the discarded lawsuits to overturn the election. Unsurprisingly, many of the bills’ sponsors had publicly questioned the validity of the 2020 election.
These new restrictions — such as early and mail voting limitations and stricter voter ID provisions — already are disenfranchising voters, particularly voters of color. While turnout was strong in the 2022 midterms, preliminary data from primaries points to voters of color having their mail ballots rejected at higher rates than white voters and the overall racial turnout gap widening in at least one key state. New Brennan Center research shows that this year, the gap between white and Black voters in Georgia was wider than at any point in the past decade, and double what it was in the last two midterm elections.
Although federal courts refused to abet the effort to overturn the 2020 election, they cannot be counted on to protect voters’ rights. In a series of rulings leading up to that election, the Supreme Court did just the opposite. It repeatedly overruled lower court judgments against voting restrictions and significantly weakened the Voting Rights Act’s protections against racial discrimination in voting in its 2021 decision in Brnovich v. Democratic National Committee. Two cases on the Supreme Court’s current docket could remove additional critical checks against racial discrimination in voting and manipulation of election rules.
Though hobbled by the Supreme Court in Brnovich and the earlier Shelby County v. Holder, the landmark law can be strengthened to restore federal preclearance for voting rule changes in jurisdictions with histories of persistent discrimination and for voting practices known to be discriminatory. The law should also be amended to make it easier to challenge discriminatory practices in court. Congress has clear authority to enact these safeguards, as Shelby County, Brnovich, and other Supreme Court decisions have recognized.
Clear rules for casting and counting ballots, including guaranteed access to early and mail voting, would blunt the recent slew of restrictive state legislation.
The committee traced every aspect of the plot to overturn the 2020 election back to the Big Lie that widespread fraud and other illegalities deprived President Trump of his rightful victory in 2020. Many of the false claims put forth by Trump and his allies exploited discrepancies between states in election administration, such as different times for processing mail ballots. Aides repeatedly told Trump these claims were false, and according to the committee, he tacitly acknowledged as much on multiple occasions. Nonetheless, the president and his top supporters continued to promote them in state and federal courts, across social media, via mass emails (including as part of a massive fundraising effort that raised hundreds of millions of dollars), and at public appearances — ultimately triggering the assault on the Capitol.
Almost two years after the insurrection, these disproven claims remain potent. Polling indicates that more than 70 percent of self-described Republicans still believe Trump won reelection. In the midterms, election denial narratives from both domestic actors and hostile foreign governments looking to sow political discord in the United States swirled across social media. Perhaps most troubling, candidates for secretary of state and other statewide offices across the country ran on election denial platforms; during the month of September, nearly one in three Facebook posts and one in five tweets from candidates for secretary of state espoused false election narratives. While the election denying swing state candidates for governor and secretary of state lost, many other proponents of election denialism won.
Clear, uniform rules regarding the casting and counting of ballots (for example, allowing mail ballots to be verified and scanned into tabulators on a rolling basis as they come in) would make it harder for conspiracy theories about improper election practices to take hold. This, in turn, would make it harder for legislators to use the pretext of fraud to disenfranchise voters and interfere in election administration.
Congress should provide state and local election officials with funds for voter education efforts and use its oversight authority to ensure that federal agencies share information and cooperate more closely with state and local officials.
Congress should require companies to disclose detailed data on the spread of election disinformation to independent, verified researchers. It should also require companies to provide greater transparency into funding sources for political ads, as the bipartisan Honest Ads Act would do.
Through its detailed investigation, the January 6 committee has helped the nation grapple with the unprecedented attempt to overturn a presidential election. But Congress’s work is only just beginning. The committee has highlighted the vulnerabilities in our election systems that facilitated the attack on the Capitol. Now Congress must put in place the necessary safeguards to ensure that the events leading up to January 6 never happen again.
Originally published by the Brennan Center for Justice, 12.16.2022, under the terms of a Creative Commons Attribution-No Derivs-NonCommercial license.