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4. Clarify the limited grounds for objections

There is wide concern that the ECA in its current form is unclear on what limits if any, restrict Congress’s power to reject electoral votes. That concern has resulted in a recommendation to include in the ECA a list of the specific grounds for objection that may be raised against counting a state’s electoral votes.

Two types of limited grounds for objection have been proposed. First, a member of Congress may object that the purported electors were not actually appointed by the state. For example, if the certificate is a forgery or the governor submits a certificate that does not reflect the results of the legal process in the state. Second, a member may object that an electoral vote violates the Constitution. For example, if the electoral vote was cast for a candidate younger than 35 years old. Any objections brought on other grounds, including that there was fraud or improprieties in the underlying popular election in the state, would be ruled out of order and would not be considered.

The Case For

Those who support clarifying the grounds for objections argue that the lack of clarity led to objections brought by Democrats in 2001, 2005 and 2017 and Republicans in 2021 that exceeded Congress’s proper role under the Constitution because states appoint electors, not Congress.

Supporters also assert that the Constitution establishes only a very limited role for Congress when it convenes to count the votes in the Electoral College. In counting the electoral votes, Congress’s authority is limited to confirming that the electors were genuinely appointed by the state and that the electoral votes are consistent with constitutional requirements. Proponents maintain that objections that scrutinize how states conducted their elections exceed those strict limits.

As Republican Leader Senator Mitch McConnell explained on January 6, 2021, “[t]he Constitution gives Congress a limited role. We cannot simply declare ourselves a national Board of Elections on steroids.” Supporters argue that those constitutional limitations are sensible. They claim that Congress is ill-equipped to investigate allegations of election improprieties, they argue. States and courts, by contrast, have extensive experience conducting recounts, considering challenges to ballots, and resolving other disputes about popular elections.

The Case Against

Opponents argue that limiting the grounds for objection would tie Congress’s hands, no matter how extensively a state’s election is plagued by fraud and illegality. In this view, Congress can serve as a final check if other institutions have failed to address grave problems in the election.