Electoral Count Act

For over a century, the procedures that Congress followed to count the votes in the Electoral College on January 6 following a presidential election amounted to a mere formality. After all, any questions about the vote had been resolved weeks in advance. In the past two decades, however, that has changed. The congressional certification of the electors of each state is no longer simply a ceremonial formality.

It started with congressional Democrats. Beginning with the 2000 presidential election, Democrats have objected to the last three Republican presidential wins. About a dozen House Democrats objected to Florida’s electoral votes during the 2000 certification, but their efforts failed for lack of any Senate support. Four years later, after the 2004 presidential election, a group of 31 House Democrats, joined by a single Senate Democrat, objected to Ohio’s electoral votes, triggering a two-hour debate before Ohio’s slate of electors was accepted. Twelve years later, after Donald Trump’s 2016 win, a half dozen House Democrats objected to the certification of the electors of several states that Trump won but they found no senator willing to join them.

An even more serious departure from the century long practice of bipartisan respect for the established presidential election process followed the 2020 presidential election. President Trump and some Republican allies attempted to circumvent that process and reverse the result of the election in several ways.

First, President Trump and his allies attempted to convince state legislatures in states where President Biden had been certified as the winner to submit slates of electors favoring President Trump instead. They also pressured governors and other state officials in several states to certify Trump’s electors rather than the Biden electors that had legitimately won the state’s election. In addition, they attempted to convince Vice President Mike Pence to assert unilateral authority to reject certain states’ electoral votes.

Finally, President Trump and his allies organized a campaign for members of Congress to raise objections to counting certain states’ electoral votes on January 6, invoking unsubstantiated allegations of voter fraud and other improprieties that had already been rejected by the courts. As a result, six Republican senators and 121 Republican members of the House voted to object to Arizona’s electoral votes, while seven Republican senators and 138 Republican members of the House voted to object to Pennsylvania’s electoral votes. Plans to object to the electoral votes of as many as five other states were abandoned after the violent attack on the Capitol Building interrupted the Joint Session of Congress.

The escalating attempts by both parties to challenge the results of presidential elections have convinced many Republican and Democratic members of Congress, scholars, and election experts that the law governing the counting of electoral votes must be updated. There is wide bipartisan agreement that this law – the Electoral Count Act of 1887 (ECA) – is vague, antiquated, and nearly impossible to interpret.

Many members of Congress and others are particularly concerned that the existing ECA is vulnerable to politically motivated manipulation by Congress or by state officials. After all, we have seen members of Congress from both parties object to state electors during several recent elections. It isn’t a stretch to see how members, feeling pressure from their party might manipulate the results in a future election by voting to reject legitimate electoral votes.

As most Americans know, U.S. Constitution establishes a unique system for electing the president that is different in important respects from the elections we hold for any other public office. Instead of voting directly for the presidential candidates, Americans technically vote for electors selected by the candidates and their political parties. Those electors then cast votes for the presidential candidates in the Electoral College.

The Constitution, as amended by the Twelfth Amendment, established an Electoral College that creates a two-stage process. In the first stage, the states appoint electors. Each state is allotted a number of electoral votes equal to the state’s total number of members of Congress in the Senate and the House of Representatives. (The Twenty-Third Amendment gives the District of Columbia three electoral votes, even though it is not represented in Congress.) States have flexibility in deciding how to appoint their electors – though since the middle of the 19th century every state has done so through a popular election.

In the second stage, once the states have appointed their electors, the electors cast their ballots in the Electoral College. In modern times, electors pledge in advance to vote for one of the candidates and many states have laws requiring electors to comply with their pledge. In practice, this means that each state’s electoral votes are cast for the candidate who wins the popular election in the state. (Maine and Nebraska have a slightly different system – some of their electoral votes are awarded to the winner of the statewide election, and some are awarded to the candidate who won the most votes in each congressional district.)

This two-stage process under the Constitution provides roles for both states and Congress. The Electors Clause of Article II of the Constitution preserves considerable discretion for states in how to choose electors: “Each State shall appoint, in such Manner as the Legislature thereof may direct, [its] Electors.” But the Constitution also gives Congress the power to determine when electors must be chosen: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Congress has exercised that timing power in the 3 U.S.C. §§ 1-2. Section 1 requires that states appoint electors on Election Day. Section 2 creates a limited exception to that requirement: if a state holding a popular election “failed to make a choice” on Election Day, then the state can appoint electors later “in such a manner as the legislature of such state may direct.” Congress enacted that exception in 1845 to allow states that require a majority winner (rather than just a plurality, meaning the most votes of any candidate but still less than 50%) to hold run-off elections, and possibly also to give states flexibility if a natural disaster prevents people from voting on Election Day. No one in Congress at the time suggested that Section 2 might apply based on claims of voter fraud or other election improprieties.

The two-stage process culminates with Congress counting the electoral votes after the electors cast them to determine which candidate has prevailed: “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.”

From early in our history, many have questioned Congress’s proper role in resolving disputes about presidential elections. That debate climaxed in the Crisis of 1876, in which officials from several states sent in competing slates of electors for different candidates. Ultimately, Congress was able to resolve that dispute, and Rutherford B. Hayes took office.

To “count” the 1876 electoral votes, Congress needed to determine which of these dueling submissions were valid. No one doubted that the states, and not Congress, have the constitutional responsibility for deciding how electors were to be appointed. But because it was faced with more than one piece of paper purporting to speak on behalf of the disputed states, Congress was forced to decide which submissions genuinely reflected the states’ appointment of electors. In 1876, there was no law in place governing how Congress should resolve the dispute. Because the House and the Senate were controlled by different parties, for months they couldn’t agree on how to proceed. Finally, they established an ad hoc Electoral Commission that resolved the dispute just days before Inauguration Day in 1877.

A decade after the Crisis of 1876, Congress enacted the ECA to prevent another crisis from arising in the future. The ECA establishes a process for Congress to count the electors’ votes and resolve any objections. The ECA directs Congress to treat a state’s final determination of a dispute about electors “by judicial or other methods” as “conclusive” so long as it is reached before a deadline in early December. Unfortunately, the ECA is complicated and vague and has failed to prevent members of Congress of both parties from making objections to state electoral counts that violate the ECA’s provisions. The Majority Staff of the Committee on House Administration has prepared an ECA report that provides a more complete history of the law and its applications.

The ECA first requires the governor of each state to send a certificate to Congress naming the state’s validly appointed electors, which in practice means that the governor sends a certificate naming the electors appointed through the state’s popular election. Then on January 6, Congress convenes to count the electoral votes. The ECA provides that for each state, the presiding officer along with several members of Congress called “tellers” open the certificates and announce the results. The vice president, who is the presiding officer, then calls for objections. If one member of the House and one senator sign the objection, the chambers separate to debate for two hours and then vote on the objection. The ECA’s procedures for resolving these objections are exceptionally complicated. In short:

1. If Congress receives only one slate of electors purporting to be from a state that has been certified by the state’s governor, then Congress must count those electors’ votes unless they were not “regularly given” (the statute does not define this vague term.) To reject a single slate, both chambers of Congress must vote to reject it.
2. If Congress receives multiple slates of electors purporting to be a from a state, and the two chambers agree on which one to count, then Congress counts those electors’ votes. But if the chambers disagree about which one to count, then Congress counts the slate that had been certified by the governor.

In taking these votes, the ECA directs Congress to treat a state’s final determination of a dispute about electors “by judicial or other methods” as “conclusive” so long as it is reached before a deadline in early December. However, as a practical matter there is no enforcement mechanism to ensure that Congress follows that direction. In recent years, Members of Congress have ignored the law’s requirements and made objections that were invalid because they were based on allegations that courts had already rejected.

Over the past year and a half, members of Congress from both parties have worked to develop ECA reforms that would clarify and strengthen the process for Congress counting electoral votes. Their efforts have focused on five specific changes to the law.

This clarification would confirm that the vice president has no substantive role in resolving disputes about electors and has no authority to reject electoral votes or to delay the proceedings.

The ECA currently establishes a timeline by which states must complete different steps in the process of determining their slate of electors and sending them to Congress. In the case that a state has “failed to make a choice” by Election Day, the law gives state legislatures the ability to establish a means of designating those electors after Election Day. The history shows that Congress intended the provision to apply only in the case that a major natural disaster or similarly rare and catastrophic event disrupted Election Day. This proposal would make that meaning clearer and more explicit.