Electoral Count Act
Pub. L.49–90 | |
Statutes at Large | 24 Stat. 373 through 24 Stat. 375 (3 pages) |
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Legislative history | |
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Major amendments | |
Electoral Count Reform and Presidential Transition Improvement Act of 2022 | |
United States Supreme Court cases | |
Bush v. Gore |
This article is part of a series on the |
Politics of the United States |
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The Electoral Count Act of 1887 (ECA) (
The Act was enacted by Congress in 1887, ten years after the disputed 1876 presidential election, in which several states submitted competing slates of electors and a divided Congress was unable to resolve the deadlock for weeks.[3] Close elections in 1880 and 1884 followed, and again raised the possibility that with no formally established counting procedure in place, partisans in Congress might use the counting process to force a desired result.[4]
The Act aimed to minimize congressional involvement in election disputes, instead placing the primary responsibility to resolve disputes upon the states.[4][5] The Act set out procedures and deadlines for the states to follow in resolving disputes, certifying results, and sending the results to Congress. If a state followed these "safe harbor" standards and the state's governor properly submitted one set of electoral votes, the Act stated that this "final" determination "shall govern."[6][7] However, making or use of "any false writing or document" in the implementation of this procedure was a felony punishable by 5 years imprisonment by 18 U.S. Code 1001 under Chapter 47 Fraud and False Statements. The Act thus relegated Congress to resolving only a narrow class of disputes, such as if a governor had certified two different slates of electors or if a state failed to certify its results under the Act's procedures.[8] Congress could also reject votes under the Act for other specific defects, such as ministerial error, if an elector or candidate was ineligible for office, or if the electoral college votes were not "regularly given."[8][9]
The central provisions of the law were never seriously tested in a disputed election.
Under the Twelfth Amendment, the vice president (as President of the Senate) opens the electoral certificates. The act clarified the vice president's limited role in the count.[4][8][9] Both houses could overrule the vice president's decision to include or exclude votes, and under the Act even if the chambers disagree, the governor's certification, not the vice president, broke the tie. On many occasions, the vice president has had the duty of finalizing his party's defeat, and his own on some of those occasions. Richard Nixon, Walter Mondale, Dan Quayle, Al Gore, Dick Cheney, Joe Biden, and Mike Pence all notably presided over counts that handed them, or their party, a loss.[13][14]
The Electoral Count Reform and Presidential Transition Improvement Act of 2022 made changes to the procedures laid out in the Electoral Count Act, along with adding clarifications on the role of the vice president. The proposal was included in the Consolidated Appropriations Act, 2023, which passed during the final days of the 117th United States Congress.[15] The bill was signed into law by President Joe Biden on December 29.[16][17] Simple majorities of a new House and Senate could also set new rules for a subsequent joint session convened to count electoral votes unless constitutional provisions were to be enacted.[10]
Background
Electoral College
The president and vice president of the United States are formally elected by the Electoral College. The Constitution gives each state the power to appoint its electors "in such Manner as the Legislature thereof may direct". All states have been using some form of popular election since 1868. The electors are "appointed" at the national election held on Election Day, which occurs "on the Tuesday next after the first Monday in November".[18] After Election Day, the electors chosen in each state must then "meet and give their votes on the first Monday after the second Wednesday in December",[19] with meetings of electors typically held in each state capital.
The
In discussions of the law, the term "state" includes the
Pre-enactment history
During the nation's first century, at least "three great questions" about the electoral vote counting provisions in the Constitution frequently arose:
First, does the Constitution give the President of the Senate sole power to exercise whatever discretion the count involves, or are the two Houses of Congress the final judge of the validity of votes? Secondly, is the power to count merely the power to enumerate votes given by electors declared by state authority to have been appointed, or is there power to determine the correctness of the state authority's declaration and to examine the validity of the acts of the electors? Thirdly, whatever the scope of the power, how is the evidence necessary to a decision to be presented, and by what means is the decision to be made?[23]: 323–24
In 1865, Congress asserted "total power over the electoral vote" with the adoption of the Twenty-second Joint Rule.[23]: 328 Enacted by strong Republican majorities in the wake of the Civil War, the rule provided simply that if any question arose about a state's electoral votes, the affirmative consent of both the House and Senate was required before the state's votes would be counted.[23]: 328
Enactment
The act was proposed soon after the extremely contentious 1876 presidential election and the Hayes-Tilden crisis, primarily in order to guide electoral disputes in a divided congress, which before the act might have resulted in the disenfranchisement of the state in question or alternatively a unilateral decision by the President of the Senate, the Vice President.[24]: 20–1
The Republican Senate passed four versions of the act, in 1878, 1882, 1884, and 1886, before its enactment. The earlier versions all failed in the House of Representatives which was mainly controlled by Democrats, who had a greater sensitivity toward states' rights. States' rights was a focal point of discussion on the legislation, as there was significant debate over the powers of Congress to determine the validity of electoral votes and set rules for the states.[11]: 635 [24]: 21
The drafting of the act involved large amounts of passionate debate over many of its provisions. The primary questions debated were the "relative balance of power between federal and state authority concerning the counting of electoral votes" and the "distribution of congressional oversight across... the two chambers... and within the federal judiciary."[24]: 17
In 1886, the
: 335State determination of controversies
Section 2 (now 3 U.S.C. § 5) gives each state an opportunity to resolve disputes relating to the appointment of electors if a state has enacted a law before Election Day[18] that provides for a "final determination" of such disputes by "judicial or other methods or procedures," and such "determination" is made "at least six days before the time fixed for the meeting of electors."[6] Such determination "shall be conclusive, and shall govern in the counting of the electoral votes ... so far as the ascertainment of the electors appointed by such State is concerned."[6]
In the ruling of
Safe harbor
Section 2 does not require a state to make a final determination by that date in order for its electoral votes to ultimately be counted by Congress. Rather, the Supreme Court has stated that the section "creates a 'safe harbor' insofar as congressional consideration of its electoral votes is concerned. If the state legislature has provided for final determination of contests or controversies by a law made prior to Election Day, that determination shall be conclusive if made at least six days prior to said time of meeting of the electors."[26]: 77–78 In addition, since the section "contains a principle of federal law that would assure finality of the State's determination if made pursuant to a state law in effect before the election, a [state] legislative wish to take advantage of the 'safe harbor' would counsel against any construction of [state law] that Congress might deem to be a change in the law."[26]: 78
2000 election
During the
2020 election
On December 3, 2020, Supreme Court Justice
On December 7, 2020, Texas Attorney General Ken Paxton filed a suit in the Supreme Court, Texas v. Pennsylvania, alleging that Georgia, Michigan, Pennsylvania and Wisconsin violated both various federal and state laws by changing their election procedures in the run-up to the election. Numerous parties and states filed either in support of Texas or opposing it. Attorneys general of 20 states, two territories, the District of Columbia, and other various parties (only states and the District have voting electors) filed an opposing motion to dismiss the Texas lawsuit. Attorneys general from 18 states, members of defendant state legislatures, and other various parties filed in support of Texas; six of those states filed to join the lawsuit.[29][30] The attorneys general of Ohio and Arizona filed neutral motions noting that the United States Supreme Court has a duty to rule on the matter however both expressed no further opinion.[31] The Defendant state attorneys general argued that their claims are incorrect and would disenfranchise voters,[32] while Plaintiffs argued that their mishandling of the election dilutes legal votes with fraudulent votes. The US Supreme Court affirmed that it had jurisdiction over the matter on December 11, 2020, but denied the motion for leave to file a bill of complaint for "lack of standing".[33]
On December 27, 2020, Texas Representative
Ascertainment process
During the election of 1876, Congress received electoral votes from multiple slates of electors in several
Certificate of ascertainment
Section 3 (now 3 U.S.C. § 6) requires the governor of each State to prepare seven original copies of a "certificate of ascertainment", each under the seal of the state, which identifies the electors appointed by the state and the votes they received, as well as the names of all other candidates for elector and the votes they received.[38] The electors that are being appointed are determined "under and in pursuance of the laws of such State providing for such ascertainment." The name of the presidential candidate and vice-presidential candidate do not need to appear on the certificate; neither do the number of votes. The certificates only need to state the names of the slate of electors.[39] Each state is free to choose the appearance and layout of the certificate. The Office of the Federal Register ensure that each certificate contains all legally required information, but substantive legal issues must be decided by the Congress and the Courts.[40]
The certificate must be issued "as soon as practicable after the conclusion of the appointment of electors in [a] State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment ...." The certificates must be prepared as soon as possible after election day and copies must be delivered to the electors on or before the day on which they are required to meet and cast their votes.[41] Details of the processing of the completed certificates varies between elections but, generally, sets of certificates must be sent to various state and federal officials including, by registered mail, to the Archivist of the United States. The Archivist will transmit sets to the House and Senate before the Electoral College meets.[40][39]
Certificate of final determination
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2020 Presidential Election Certificates of Vote and Certificates of Ascertainment |
If an election had been contested, 3 U.S.C. § 6 also provides that "if there shall have been any final determination in a state in the manner provided for by [state] law of a controversy or contest," then the governor must, "as soon as practicable after such determination," communicate, "under the seal of the State ... a certificate of such determination in form and manner as the same shall have been made."[41]
Notably, the relevant clause in 3 U.S.C. § 6 differs substantively from the original clause in Section 3 of the 1887 law, as shown below:
- Old version: "if there shall have been any final determination in a State of a controversy or contest as provided for in section two of this act, it shall be the duty of the governor [to transmit a certificate of such determination etc.]"[1]
- New version: "if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the governor [etc.]"
Under the original version, the clause appears to apply only in situations where the final determination satisfies the Section 2 "safe harbor." The current version requires a certificate to be sent regardless of whether the safe harbor applies. The difference may be relevant[discuss] since Section 4 (now 3 U.S.C. § 15) prohibits Congress from rejecting any electors "whose appointment has been lawfully certified to according to [3 U.S.C. § 6]."[42] (See Substantive counting rules below.)
This process was used by the state of Florida following the 2000 election when it submitted a "Certificate of Final Determination of Contests Concerning the Appointment of Presidential Electors" that was signed by the governor and secretary of state. As narrated by an attorney in the Office of the Federal Register at the time:
[O]n December 12, the Supreme Court announced its decision in favor of Governor Bush.... While other lawyers argued over the full meaning of the Court's decision in Bush v. Gore, the
Florida Secretary of State submitted this unique final determination to us, and from our procedural point of view, the Florida electoral fight came to an end.[43]
Certificate of vote
Role of the Archivist
Section 3 originally required the transmission of certificates to the Secretary of State.[1] The current law (3 U.S.C. § 6) assigns the relevant duties to the Archivist of the United States. The law requires the Archivist to preserve the certificates for one year, make them "a part of the public records of his office," and make them "open to public inspection."[41] At the first meeting of the new Congress, the Archivist must transmit to both houses "copies in full of each and every such certificate so received."[41] In modern practice, these and other administrative tasks related to the Electoral College are handled by the Office of the Federal Register (OFR) within the National Archives and Records Administration.[49]
In the current era, OFR mails information packets to the state governors in the fall of each election year. After the election, OFR attorneys "carefully vet the facial legal sufficiency" of the certificates they have received. If correctable errors are discovered, they try to remedy them before Congress convenes the joint session to count the votes. While this process is not set out in statute, "the logic of the law" leaves it to the Office "to inform the officers of the House and Senate of any irregularities and to coordinate state and federal actions for the final counting of votes."[43]
There are "more than a few things that can go wrong." OFR attorneys must sometimes track down "bewildered bureaucrats" surprised to learn of their duties, with some state officials even claiming that their state has "abolished" the Electoral College. In some instances, federal officials including members of Congress have been chosen to serve as electors, in violation of Article II which states that "no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector."[43][50] OFR has retrieved certificates from a variety of places, "rummaged through mailbags" on Christmas Eve, called on state police to help find electors who forgot to sign the Certificate of Vote, etc., to correct problems before Congress meets to count the votes.[43]
Following the 2000 election, the Florida Legislature contacted OFR seeking to learn the technical process to revoke the ascertainment of electors certified by the secretary of state, and replace it with a new set of electors to be appointed directly by the Legislature under Article II of the Constitution. OFR advised that while there was no precedent for such a "do-over," it would "work out a way to follow the Constitution and federal law." The Supreme Court decision in Bush v. Gore made the matter moot.[43]
Counting procedures
Section 4 of the Electoral Count Act (now 3 U.S.C. § 15) provides both detailed procedures and counting rules for specific situations. It significantly expands upon the Twelfth Amendment, which states only that "The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted."[20]
This central section of the Electoral Count Act has been significantly criticized. It is a "mammoth section some 814 words in length"[12]: n.8 that makes for difficult parsing, and "[m]any of its substantive rules are set out in a single sentence that is 275 words long."[12]: 543
Procedures for joint session
Under Section 4 (
Two tellers must be "previously appointed" by the Senate and two tellers by the House of Representatives. The president of the Senate must open all the "certificates" and "papers purporting to be certificates" of the electoral votes, and hand them to the four tellers as they are opened. The certificates and papers must be "opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A." The tellers, "having read the [papers] in the presence and hearing of the two Houses," must "make a list of the votes as they shall appear from the ... certificates."[42]
If there are any objections to the returns from any state (see Substantive counting rules below), they must be resolved before the process can continue to the next state: "No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of."
Debate rules
The structure of the Electoral Count Act's procedural provisions generally requires that any questions arising during the counting process be determined by the two houses acting separately, rather than by both houses together on the House floor. Section 5 (now 3 U.S.C. § 18) states that "the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw." Section 6 (now 3 U.S.C. § 17) states that whenever the two Houses have separated "to decide upon an objection ... or other question arising in the matter," each senator and representative may "speak to such objection or question" for five minutes, and not more than once.[54] After the debate has lasted two hours, the presiding officer of each House must "put the main question without further debate."[54] Once the two houses have both voted, "they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted."[42]
Section 7 (now 3 U.S.C. § 16) states that the joint session cannot be dissolved "until the count of electoral votes shall be completed and the result declared."[51] No recess can be taken "unless a question shall have arisen in regard to counting any such votes, or otherwise under [Title 3, Chapter 1]," in which case either House, acting separately, can recess itself until 10:00 am the next day (Sunday excepted).[51] But if the counting of the electoral votes and the declaration of the result have not been completed before the fifth calendar day after the joint session began, "no further or other recess shall be taken by either House."[51]
Role of the vice president
The Constitution instructs that electoral votes must be sent to the president of the Senate – who is the sitting vice president of the United States – and that the Senate president must "open all the certificates" in the presence of both houses.[20] However, the sitting vice president is sometimes a candidate for president in the election, is often a candidate for re-election to the vice presidency, and is almost always a partisan with a keen interest in the outcome. Recognizing this, one key purpose of the Electoral Count Act's procedural provisions is "to drain away as much power as possible from the Senate president, whom the [law] appoints to preside at the joint session when Congress counts the votes."[12]: 634
As the custodian for papers, the Senate president is required by the Constitution to "open all the certificates,"[20] which the Act further describes as "all the certificates and papers purporting to be certificates."[42] In doing so, the goal of the Act "was to reduce the Senate President's discretionary power as gatekeeper to the absolute minimum...."[12]: 639 Indeed, in one case from 1889, papers sent as a "practical joke" were presented to the joint session.[12]: 638 Whether the Senate president can be required to present or not present any particular paper is an open question, but one commentator argues that concurrent action by both houses would settle the matter while disagreement between the houses would see the Senate president's decision upheld.[12]: 639
The Electoral Count Act's provisions governing debate and procedure, prescribed to be followed by the Senate president as the presiding officer during the joint session, are unusually specific (see above), with one early commentator describing them as "exhaustive" and as good "as human wit can divine."[11]: 652 [12]: n.580 These provisions "seem designed to drain as much power as possible away from the Chair and give it to the two houses."[12]: 640 After the 2000 election, Vice President Al Gore ruled that a number of procedural motions were out of order by extending the Act's formal requirements for substantive objections – that is, to be presented in writing and signed by both a Representative and a Senator – to procedural questions.[12]: 648–49 This suggests that if procedural motions and appeals were made in that manner, they would be allowed and the two houses would have to separate to consider them.[12]: 649
Substantive counting rules
The structure of Section 4 (3 U.S.C. § 15) separates the substantive counting rules primarily in two sentences. The first describes the rule for making objections, and includes limits on congressional rejection of votes where "but one return [from the state] has been received." The second, very lengthy sentence relates to situations where "more than one return or paper purporting to be a return" has been received."[42]
Single return
Under Section 4 (3 U.S.C. § 15), upon reading of "any certificate or paper, the president of the Senate shall call for objections, if any." Every objection must be made in writing, and must "state clearly and concisely, and without argument," the ground for the objection. It must be signed by at least one senator and one member of the House of Representatives before the objection can be received. Once all objections to any vote or paper from a state have been received and read, the Senate withdraws and the two houses consider the objections separately.
However, when considering such objections, Section 4 requires that – assuming "but one return [from the state] has been received" – no electoral votes from electors whose appointment has been "lawfully certified" under the ascertainment process (see above) can be rejected. The two houses may only reject a vote or votes if both houses agree that such vote(s) have not been "regularly given" by an individual elector or electors.[42] Under the law, Congress may still reject a state's electors if both houses decide to do so, but only when they determine either that the appointment of electors was not "lawfully certified" by the governor under the ascertainment process, or that the votes themselves were not "regularly given" by the electors.[12]: 616
The phrase "regularly given" is generally understood as referring to issues regarding an elector's actual vote, rather than whether the elector has been properly appointed.[12]: 671 It could include, for example, situations where an elector cast a particular vote because of bribery or corruption,[12]: 670 or mistake or fraud.[23]: 338 It may also include situations where the elector did not vote in accordance with applicable constitutional and statutory requirements.[12]: 670 [23]: 338
Notably, this portion of Section 4 applies to all cases where a single return is received, regardless of whether the safe harbor under Section 2 (3 U.S.C. § 5) applies or not. Since safe harbor determinations are supposed to be "conclusive," there is some tension between the provisions since Section 4 still allows for Congress to reject a state's votes. One commentator finds the conflict "more apparent than real," arguing that Section 4 only allows for rejection of safe-harbor electoral votes in cases involving "the electors' post-ascertainment conduct" and to "constitutional infirmities in their status as electors or in the votes they cast."[12]: 616
History
This provision of the law was designed to resolve the significant question in the nineteenth century regarding the proper role of Congress in reviewing controversies about which electors a state had appointed. It has been described as reflecting a balance between giving Congress unfettered ability to reject a state's electoral votes vs. deferring to state determinations, which was a significant topic of discussion during the Reconstruction era.[12]: 614–15
1968
The first time an objection occurred was in 1969, in response to a faithless elector from North Carolina who voted for George Wallace instead of Richard Nixon. Representative James O'Hara and Senator Edmund Muskie raised the objection, which was subsequently rejected by each chamber by a vote of 170–228 in the House and 33–58 in the Senate.[55][56]
2004
After the 2004 United States presidential election, Senator Barbara Boxer of California joined Representative Stephanie Tubbs Jones of Ohio in filing a congressional objection to the certification of Ohio's Electoral College votes due to alleged irregularities including disqualification of provisional ballots, alleged misallocation of voting machines, and disproportionally long waits in poor and predominantly African-American communities.[56][57] The Senate voted the objection down 1–74; the House voted the objection down 31–267.[56]
2020
Following on
Multiple returns
In cases where multiple returns have been submitted from a state, Section 4 (3 U.S.C. § 15) seeks "[to direct] Congress away from an open ended search for the proper return, and towards the simpler issues of identifying the state's final determination authority and whether that institution had reached its decision according to the terms and conditions of [3 U.S.C. § 5]."[12]: 627 It seeks to "reduce to a minimum the cases where any difference can properly arise."[59]: 1020 In one sentence of 275 words, the law appears to envision three different scenarios:
- If there are multiple returns yet only one is compliant with the safe harbor, then the safe harbor return must be counted as the true return, assuming the votes have been "regularly given" by the electors. If more than one return, or paper purporting to be a return, from a state is received by the president of the Senate, then the only votes to be counted are those that have been "regularly given" by those electors (or their validly-appointed successors) who are shown by the "determination" mentioned in 3 U.S.C. § 5 ("safe harbor") to have been appointed, assuming the determination has been made.[42]
- If two or more returns from a state can claim the safe harbor, then neither will be counted unless both houses agree to count one of them as the true return supported by state law. In case the question arises "which of two or more ... State authorities determining what electors have been appointed, as mentioned in [3 U.S.C. § 5], is the lawful tribunal of such State," then votes "regularly given" will only be counted from electors that the two houses, acting separately, concurrently decide is supported by "the decision of such State so authorized by its law."[42] This appears to be Congress' response to the problem of dueling state governments that arose during the election of 1876.
- If there are multiple returns yet none can claim the safe harbor, one return can be counted if both houses agree it complies with state law, and were "regularly given" by the electors. If there has been "no such determination of the question in the State aforesaid," votes will only be counted that the two houses concurrently decide were cast by "lawful electors appointed in accordance with the laws of the State," unless the two Houses, acting separately, concurrently decide "such votes not to be the lawful votes of the legally appointed electors of such State."[42] Read in isolation, it would mean that one return can be counted as the true return if both houses agree it complies with state law, unless both houses further agree the votes themselves were not "regularly given" by the electors.
However, this critical sentence then follows: "But if the two Houses shall disagree in respect of the counting of such votes, then ... the votes of the electors whose appointment has been certified by the executive of the State, under the seal thereof, shall be counted."[42]
Scope of governor's tiebreaker
Commentators have differed over the interplay between the governor's "tiebreaker" sentence and the lengthy 275-word sentence that precedes it. There is broad agreement that the tiebreaker must modify the third scenario of multiple returns where none can claim the safe harbor. However, a possible ambiguity involves the second scenario in which multiple returns do claim the safe harbor:
One conceptual possibility is that this new sentence operates upon the immediately preceding clause, the one concerning what to do when none of multiple returns are claimed to have Safe Harbor status. The other conceptual possibility is that this new sentence operates upon all preceding clauses involving multiple returns, both when none claim Safe Harbor status and when more than one so claim.[60]: 356
L. Kinvin Wroth, writing in 1960, stated that the tiebreaker only applies to the third scenario, in which there has been no safe harbor determination by state authorities. Thus, in the second scenario where two returns claiming the safe harbor are received, "[i]f the Houses cannot agree ... no vote from the state in question is counted. This result follows regardless of the governor's action."[23]: 343 In 2001, a Congressional Research Service report authored by Jack Maskell "embraced Wroth's view of the statute, citing and quoting Wroth's article extensively."[61][60]: 357 Maskell's CRS report also added more arguments based on the legislative history of the Electoral Count Act.[61][60]: 357
For example, Senator
In contrast, Stephen A. Siegel argues textually that based on punctuation, the tiebreaker provision should be read "as relating to the entire preceding sentence, not just to the clause after the final semicolon."[12]: 664 Siegel viewed the main purpose of amendments that led to the tiebreaker being added as being to "respond to congressmen concerned about the power of one house of Congress to disenfranchise a state when there were multiple returns." He reads the legislative history differently, and notes that the conference report states as follows:
The general effect of all [the reconciling amendments], and of the bill as report ..., is to provide for the decision of all questions that may arise as to its electoral vote to the State itself, and where, for any reason, that fails, then the Houses circumscribe their power to the minimum under any circumstances to disfranchise a State, and such result can only happen when the State shall fail to provide the means for the final and conclusive decision of all controversies as to her vote.[12]: 664–65 [62]
Siegel also argues that if the two Houses disagree about whether a return claiming the safe harbor has actually satisfied the safe harbor requirements, the Wroth-Maskell reading would prevent them from counting any other return. That is, "a return that claims (safe harbor) status may not trump all, but it does forestall all," which Siegel argues is not what Congress could have intended.[12]: 668–69
History
These provisions were a reaction to the problem of multiple returns encountered in the 1876 United States presidential election, before the Electoral Count Act was passed. From four states – Florida, Louisiana, South Carolina and Oregon – two sets of returns were transmitted to Washington, D.C.
Hawaii became a state in 1959. In its first presidential election in 1960, Vice President Richard Nixon won the popular vote by a narrow 141 vote margin: Governor William Quinn certified the Republican electors, and they cast Hawaii's three electoral votes for Nixon. When the election was challenged in court, the Democratic electors cast three electoral votes for President-elect John F. Kennedy, but cast them later than the safe harbor deadline. A certification for the Democratic votes was issued when a recount resulted in Kennedy being declared winner by 115 votes. When both Democratic and Republican electoral votes from Hawaii were presented for counting, Vice President Nixon graciously, and saying "without the intent of establishing a precedent",[63] permitted the Democratic votes for Kennedy to be counted.[64][65]
In 2020, several Republican groups, including some groups of electors slated by the Republican Party and defeated in popular voting, cited the Hawaii precedent and held events naming alternative electors who would vote for Donald Trump.[35][66][67] None of these electors was appointed as an elector by any organ of state government, or certified as electors by their state governors.[35] Moreover, all states except Wisconsin had certified their results by the "safe harbor" deadline,[68] which under the Act is "conclusive."[6] None of those certifications included these alternative electors.[35] Observers, including the conservative National Review, described these electors as "extralegal," "bizarro," and "hav[ing] no actual significance."[35][69][67][70]
Results
Once the votes have been "ascertained and counted in the manner and according to the rules ... provided" by the Act, "the results ... shall be delivered [by the tellers] to the president of the Senate." The Senate president "shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice-President of the United States."[42] An earlier version of the bill would have required the Senate president to announce "the names of persons, if any, elected," but the phrase was stricken with the Conference Report explaining that the reason for the change was "to prevent the President from doing more than announcing the state of the vote as ascertained and delivered to him by the tellers...."[12]: 642–43 [71]
Majority of electors
To be elected by the electoral college, the Constitution requires that a candidate receive "a majority of the whole number of Electors appointed."[20] One early virtue of this wording was that if certain states decided not to participate in the election by failing to appoint any electors, a president could still be elected by a majority of those who were appointed.[23]: 324 [12]: 653
However, when Congress rejects a state's electoral vote, or chooses not to count any of multiple competing returns, "the effect that decision has on the denominator that determines whether a candidate has more than fifty percent of the electoral vote is an entirely open issue."[12]: 653 For example, if there are currently 538 total votes, and all votes from a state that appointed 20 electors are rejected, a majority could either remain as 270 votes out of 538, or be reduced to 260 votes out of 518. Historical precedent is split, and in those previous cases where a state's electors were rejected or considered for rejection (for example, in 1872), it has never determined whether the winning candidate had achieved a majority. "Perhaps because the diversity of strongly held views might imperil the delicate web of compromises supporting the [Electoral Count Act], Congress avoided addressing the issue in the [Electoral Count Act]."[12]: 654
A future joint session "might be called upon to address the effect of this situation" without clear precedents.[5]: 5 While Congress would likely be able to decide the issue by a vote of both houses during a future session, if one house finds that a candidate has achieved a majority and the other house disagrees, the Electoral Count Act provides no default rule nor any path forward. Nor can the Senate president play any role in deciding the matter, since his or her role in delivering results is strictly limited by the Act to receiving the tellers' lists and "announc[ing] the state of the vote.".[12]: 653 The Senate president does not announce "the names of persons elected," since Congress specifically rejected that option as explained above.
If no candidate is determined to have a majority, then the contingent election procedure described in the Twelfth Amendment would be used.[20] The House, voting by states, would elect the president as happened in 1824, and the Senate would elect the vice president as happened in 1836.
Failure to complete process
By imposing strict limits on procedures, debate, and recesses, the Electoral Count Act is designed to help Congress achieve an election result before the term of the outgoing president ends. Nevertheless, if no new president (or vice president) has been elected by that time, the
One commentator has described situations in which ambiguities under the Electoral Count Act could cause the two houses to disagree about whether the electoral count has been completed,[60]: 360 or to disagree about whether a new president has been chosen, and describes a situation where this could lead to competing claims to the presidency.[60]: 362
Constitutionality
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At least one commentator, Vasan Kesavan, has argued at length that the Electoral Count Act is unconstitutional, arguing that the counting scheme must be established by way of constitutional amendment:[9]: 1694–1792
This article argues that the Electoral Count Act, specifically 3 U.S.C. § 15, is unconstitutional. The Electoral Count Act violates the text and structure of the Constitution in multiple ways. For example, where is the font of
49th Congress (of 1887) the authority to bind future Congresses and joint conventions in counting electoral votes? More generally: What gives the joint convention the power to judge the validity of electoral votes? The counting function seems to be arithmetic and ministerial. If the joint convention could judge electoral votes, it could reject enough votes to thwart the electors' will or trigger a contingency electionfor President in the House of Representatives and for Vice President in the Senate, thereby arrogating to the two Houses of Congress the power to appoint the Nation's two highest executive officers.
However, Kesavan admits:
The prevailing wisdom, in the Supreme Court and elsewhere, is that the Electoral Count Act is constitutional.[72]
Gohmert et al. v. Pence
District Court
On December 27, 2020, seeking to change results expected from
Court of Appeals
On appeal, the three-judge panel of the Fifth Circuit Court of Appeals dismissed the case on January 2, finding, for the same reasons as did the district court, that "no plaintiff has... standing."[81]
Supreme Court
On January 6, 2021, the plaintiffs (acting as applicants) petitioned Justice Alito for an administrative stay, which was referred to the full court.[82] The applicants asked that the court direct the vice president to refrain from invoking the dispute-resolution provisions of the ECA, pending resolution of a petition of a writ of certiorari.[83] On January 7, the application was denied by the court.[84] The entire case became moot because the counting of electoral votes commenced on January 6 and completed in the early morning of January 7.
Clarifications and revisions
Vice President
On December 22, 2022, the United States Senate passed the Electoral Count Reform and Presidential Transition Improvement Act of 2022, sponsored by Senator Susan Collins of Maine and Senator Joe Manchin of West Virginia. After about a year of negotiations, it became as Division P of the Consolidated Appropriations Act, 2023, which passed 68–29 in the Senate and 225–201 in the House the following day.[89][90] It was signed into law by President Joe Biden on December 29.
Some of the highlights of the bill:[91]
- Identifies each state's governor as responsible for submitting certificates of ascertainment, unless otherwise specified by state laws or constitutions.
- Provides for expedited review, including a three-judge panel with a direct appeal to the Supreme Court, of certain claims related to a state's certificate identifying its electors.
- Requires Congress to defer to slates of electors submitted by a state's executive pursuant to the judgments of state or federal courts.
- Clarifies that the vice president cannot solely determine, accept, reject, or otherwise adjudicate disputes over electors.
- Raises objection threshold from one member of each chamber to 20% of each chamber.
- Prohibits state legislatures from declaring a "failed election." They can now move their election only under "extraordinary and catastrophic" circumstances.
References
- ^ a b c d "49 Congressional Record, Vol. -1805, Page 1887 (373)" (PDF).
- ^ "Positive Law Codification". uscode.house.gov. Office of the Law Revision Counsel. Retrieved January 2, 2021.
- ^ Koger, Gregory (January 4, 2021). "The Origins of the 1887 Election Count Act". Mischiefs of Faction. Retrieved January 4, 2021.
- ^ OCLC 928386780.
- ^ a b c Rybicki, Elizabeth; Whitaker, L. Paige. "Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress" (PDF). Congressional Research Service. Congressional Research Service. Retrieved December 22, 2020.
- ^ a b c d 3 U.S.C. § 5
- ISSN 0190-8286. Retrieved December 28, 2020.
- ^ a b c d Siegel, Stephen A. (2004). "The Conscientious Congressman's Guide to the Electoral Count Act of 1887" (PDF). Florida Law Review. Vol. 56, p. 652.
- ^ a b c d Kesavan, Vasan (2002). "Is the Electoral Count Act Unconstitutional?". North Carolina Law Review. Vol. 80. p. 1653.
- ^ a b Siegel, Stephen A. (2004). "The Conscientious Congressman's Guide to the Electoral Count Act of 1887" (PDF). Florida Law Review. Vol. 56, pp. 550, 560.
- ^ JSTOR 2139115– via JSTOR.
- ^ a b c d e f g h i j k l m n o p q r s t u v w x y z aa Siegel, Stephen A. (2004). "The Conscientious Congressman's Guide to the Electoral Count Act of 1887" (PDF). Florida Law Review. Vol. 56. p. 541.
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- ^ a b 3 U.S.C. § 1
- ^ 3 U.S.C. § 7
- ^ U.S. Constitution
- ^ U.S. Const. art. II § 1.
- ^ See, e.g., National Archives, Roles and Responsibilities in the Electoral College Process
- ^ a b c d e f g h i Wroth, L. Kinvin (1960). "Election Contests and the Electoral Vote". Dickinson Law Review. Vol. 65. p. 321.
- ^ Journal of Law and Politics(4).
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- ^ a b Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000).
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The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.
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- ^ "MOTION OF STATES OF MISSOURI, ARKANSAS, LOUISIANA, MISSISSIPPI, SOUTH CAROLINA, AND UTAH TO INTERVENE AND PROPOSED BILL OF COMPLAINT IN INTERVENTION" (PDF). www.supremecourt.gov. 2020. Retrieved December 29, 2020.
- ^ "MOTION FOR LEAVE TO FILE AND BRIEF OF AMICUS CURIAE OHIO IN SUPPORT OF NEITHER PARTY" (PDF). www.supremecourt.gov. 2020. Retrieved December 29, 2020.
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- ^ "Supreme Court Documents" (PDF). www.supremecourt.gov. 2020. Retrieved December 29, 2020.
- ^ "Rep. Gohmert Sues Pence in Last-Ditch Attempt to Overturn Election Results". news.yahoo.com. December 28, 2020.
- ^ a b c d e McLaughlin, Dan (December 18, 2020). "Alternative Pro-Trump Slates of Electors Are a Dead End". National Review. Retrieved December 21, 2020.
- ^ Kernodle, Jeremy D. "FINAL JUDGEMENT". www.courtlistener.com. Retrieved January 4, 2021.
- ^ Kruzel, John (January 2, 2021). "Appeals court dismisses Gohmert's election suit against Pence". The Hill. Retrieved January 4, 2021.
- ^ Friedmann, Sarah (November 3, 2016). "The Certificate Of Ascertainment Records Each Vote". Bustle. Retrieved November 19, 2020.
- ^ a b "Why certificates of ascertainment are critical in the 2016 presidential election – National Constitution Center". National Constitution Center – constitutioncenter.org.
- ^ a b c d "The 2020 Presidential Election: Provisions of the Constitution and U.S. Code" (PDF). Office of the Federal Register. National Archives and Records Administration. July 2020. Retrieved November 19, 2020.
- ^ a b c d 3 U.S.C. § 6
- ^ a b c d e f g h i j k l m 3 U.S.C. § 15
- ^ a b c d e White, Michael (Fall 2008). "The Electoral College: A Message from the 'Dean'". Prologue Magazine. Vol. 40, no. 3. National Archives.
- ^ Astor, Maggie (November 12, 2020). "Here's What Will Happen Between Election Day and Inauguration Day". The New York Times. Retrieved November 19, 2020.
- ^ 3 U.S.C. § 9
- JSTOR 443484.
- ^ Grullón Paz, Isabella; Lerer, Lisa (December 13, 2020). "The Electoral College Is Voting Tomorrow. Here's What to Expect". The New York Times. Retrieved December 14, 2020.
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- ^ "The Electoral College". National Archives. May 20, 2019. Retrieved September 12, 2020.
- ^ U.S. Const. art. II § 1 cl. 2.
- ^ a b c d 3 U.S.C. § 16
- ^ "CNN.com – Bush carries Electoral College after delay – Jan 6, 2005". www.cnn.com.
- ^ "WATCH LIVE: Joint Session of Congress for Counting of Electoral College Ballots". www.c-span.org. Retrieved January 6, 2021.
- ^ a b 3 U.S.C. § 17
- ^ "Muskie archive CONGRESSIONAL RECORD – SENATE January 6, 1969". Bates university archive. Bates University. August 5, 2020. Retrieved December 20, 2020.
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- ^ a b c 17 Cong. Rec. 1019 (statement of Sen. George Hoar) (February 1, 1886)
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- ^ Institution, Brookings (1961). The Presidential Election and Transition, 1960–1961: Brookings Lectures and Additional Papers. Brookings Institution. p. 152.
- ^ a b Burlingame, Burl. "Hawaii was the 'Florida' of 1960 election." Honolulu Star-Bulletin. November 18, 2000. Retrieved December 19, 2020.
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- ^ Kesavan 2002, p. 1660.
- ^ Thompson, Elizabeth. "Louie Gohmert sues Pence in far-fetched bid to overturn election results on Jan. 6". The Dallas Morning News. The Dallas Morning News. Retrieved December 29, 2020.
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- ^ Breuninger, Kevin (December 28, 2020). "Congressman, other Republicans sue Vice President Pence in last-ditch effort to overturn Biden win". CNBC.
- ^ "Gohmert et al. v. Pence" (PDF). The Ohio State University. Retrieved December 31, 2020.
- ^ Wellerman, Zak (December 30, 2020). "East Texas judge sets deadline for Pence in Gohmert lawsuit". Longview news-journal. Longview news-journal. Retrieved December 31, 2020.
- ^ "Pence asks judge to reject Gohmert lawsuit asking the VP to interfere in the Electoral College count". CNN politics. January 1, 2021.
- ^ Jess Bravin, Sadie Gurman (January 2021). "Pence, House Seek to Dismiss GOP Suit Aimed at Letting Him Overturn Election". Wall Street Journal. Dow Jones & Company, Inc. Retrieved January 1, 2021.
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- ^ "Emergency Application To The Honorable Samuel A. Alito As Circuit Justice For The Fifth Circuit For Administrative Stay And Interim Relief Pending Resolution Of A Timely Filed Petition For A Writ Of Certiorari" (PDF).
- ^ "Order in Pending Case 20A115" (PDF).
- ^ Lesavan, Vasan (2002). "Is the Electoral Count Act Unconstitutional?". North Carolina Law Review. Vol. 80. p. 1702.
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- Wikidata Q105013453.
- ^ "Pence reminds Republicans that he lacked the authority to reject electoral votes on January 6". www.cbsnews.com. June 24, 2021. Retrieved January 2, 2022.
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Further reading
- Wroth, Kinvin L. (1968). "Election Contests and the Electoral Vote". Election of the President: Hearings Before the Subcommittee on Constitutional Amendments...89-2 and 90-1, on S. J. Res. 4, 7, 11, 12, 28, 58, 62, 138, and 139, in the 89th. and S.J. Res. 2, 3, 6, 7, 12, 15, 21, 25, 55, 84, and 86, in the 90th, on February 28; March 1, 2, 7, 8, 9, 10, 1966; May 16, 17, 18; July 12, 13, 14, 18, 19, 20, 25; August 23, 1967. United States Senate. pp. 774–794.