The Electoral Count Act (ECA) governs the casting and counting of electoral votes for president and vice president every four years. The statute sets the timeline for states to appoint presidential electors in November and for electors to cast their votes in December, and describes the process that Congress should follow when it counts the states’ electoral votes in January. Originally enacted in 1887, the statute remained largely the same for well over a century and was badly in need of an update. It included antiquated and ambiguous language, and failed to offer clear guidance on key aspects of the process of counting electoral votes and resolving related disputes — weaknesses that rendered the statute open to misunderstanding or exploitation, and risked the peaceful transitions of power that have been a hallmark of our democracy.
In late December 2022, Congress passed the Electoral Count Reform Act (S.4573 ) as part of omnibus appropriations legislation. The bill updates the ECA, providing much-needed clarity on the process of casting and counting electoral votes, striking a better balance between the roles of state and federal actors in that process, and eliminating many of the most concerning potential weaknesses in the law.
The following is an overview of the ECRA’s key provisions.
Requires that states appoint electors on Election Day in accordance with pre-existing law and eliminates the concept of “failed” elections. [Section 102]
Previous law (3 U.S.C. § 1) set “the Tuesday next after the first Monday in November” as the date on which states must appoint their presidential electors (i.e., Election Day because all states appoint electors based on a popular election).
In addition, however, the law (3 U.S.C. § 2) provided that if a state has held an election but somehow “failed to make a choice” on Election Day, then the state legislature could choose the manner of appointing electors on a subsequent day. (A version of this provision technically dates back to the Presidential Election Day Act of 1845 and thus preceded the ECA.) This provision was meant to accommodate run-off elections and extreme weather conditions that sometimes prevented the completion of elections on a single day. But the language is vague as to what it means for an election to “fail.” As a result, some partisan actors have wrongly suggested that delays in counting votes or disputes about how an election was conducted can form the basis of a “failure” that would justify state legislatures appointing electors themselves after Election Day.
The ECRA eliminates 3 U.S.C. § 2 entirely and instead provides that states must appoint electors on a designated date (the same date as previous law), except that a state that holds a popular election may “modif[y] the period of voting as necessitated by force majeure events that are extraordinary and catastrophic, as provided under laws of the state” enacted prior to Election Day. In doing so, the legislation eliminates the “failed election” loophole and the potential for partisan actors to exploit it.
Importantly, because it allows only a modified (i.e., extended) voting period, and only when “necessitated” by “force majeure” events (such as a natural disaster) that qualify as “extraordinary and catastrophic,” the ECRA does not allow state legislatures to step in to appoint electors themselves after Election Day. Nor does it allow claims of fraud to trigger the exception to appointing electors on Election Day.
Adds clarity to the process by which state officials ascertain and certify their election results to Congress. [Section 104]
The ECRA makes clear that the executive of each state is required to certify the state’s appointment of electors (in essence, its election results) to Congress no later than six days before the date on which the Electoral College meets, and that he or she must do so “under and in pursuance” of state law enacted prior to Election Day. The legislation defines “executive” to mean the governor unless the state designates another official in advance.
The ECRA sets “the first Tuesday after the second Wednesday in December” as the date on which the Electoral College must meet, only one day later than in the past. It further provides that Congress must treat the executive’s certification as “conclusive” unless a state or federal court has ordered that it be replaced or modified — in which case Congress must treat the new/modified certificate as conclusive (with federal courts having the final say on issues of federal law, including the ECRA itself).
Gives federal courts a clear and expedited role in ensuring that states send lawful certifications of election results to Congress. [Section 104]
Previous law did not explicitly provide any role for the federal courts in resolving disputes about a state’s appointment of electors. The ECRA creates an expedited procedure for federal courts to hear claims brought by presidential candidates pursuant to existing federal law (constitutional or statutory) with respect to a state executive’s duty to issue and transmit to Congress the certification of appointed electors. Specifically, it incorporates another provision of federal law (28 U.S.C. § 2284) that provides for cases to be heard by a three-judge court. (The only difference is that the ECRA requires that the panel be composed of two circuit judges and one district judge, rather than two district judges and one circuit judge, and the 5-day notice period included in § 2284(b)(2) does not apply.)
The ECRA also allows for direct appeal to the Supreme Court (via a petition for writ of certiorari) and requires that if the Supreme Court hears the case it do so “on an expedited basis, so that a final order of the court on remand of the Supreme Court may occur on or before the day before the time fixed for the meeting of electors.”
Importantly, this legislation does not preclude candidates from bringing other election-related litigation in state or federal court except to the extent that the narrow set of claims described—regarding the executive’s issuance and transmission of the certification of appointed electors—are subject to an expedited procedure. And it does not affect state or federal claims available to voters. The legislation states explicitly that it “shall not be construed to preempt or displace any existing State or Federal cause of action.’’
These provisions of the ECRA, combined with others, seek to ensure that only one even arguably lawful slate of electors from each state is presented to Congress to count. This should address concerns about governors or other state officials going “rogue” and purporting to certify appointments of electors that do not reflect the outcome of the election.
Makes it absolutely clear that the Vice President’s role in the electoral vote-counting process is ministerial. [Section 109]
The 12th Amendment provides that, after they vote as part of the Electoral College, presidential electors must send certificates of their electoral votes to the president of the Senate (usually the vice president). But with respect to the vice president’s role during the counting process, the 12th Amendment says only that “[t]he 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.” The original ECA designated the President of the Senate as the presiding officer when Congress meets on January
6. The statute assigned the presiding officer specific duties, such as “preserving order,” calling for objections, and announcing the results.
Contrary to arguments made during the last election, neither the 12th Amendment nor the ECA contemplated a role for the vice president — or any other presiding officer — that involves making substantive decisions about which electoral votes to count. That said, the law could have been explicit in order to foreclose any argument that the vice president has the power to decide the election.
Accordingly, the ECRA specifies that the vice president’s role in the process of counting electoral votes is limited to “ministerial duties” and that he or she has “no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors.”
Makes it more difficult for members of Congress to make frivolous objections to state election results. [Section 109]
in writing and signed by one senator and one representative. It is was therefore too easy for members of Congress to disrupt the counting process (and potentially make objections that unfairly undermine public confidence in the integrity of the election). The ECRA raises the threshold required to make a cognizable objection to one-fifth of each chamber, while retaining the requirement that each chamber must sustain objections by a majority vote.
In addition, the legislation specifies two grounds for objections, drawing on language in current law but more clearly distinguishing between the two grounds and indicating that both grounds are meant to be narrow.
The first objection the ECRA allows is that “the electors of the state were not lawfully certified under a certificate of ascertainment of appointment of electors [as set forth earlier in the bill].” By its terms, this objection applies only to the appointment of electors. Because the earlier provisions of the bill are designed to ensure that only one, lawful slate of electors is sent to Congress to count, this objection should only be applicable in rare circumstances in which some actor (e.g., the vice president) purports to present a slate of electors that does not qualify as conclusive under those earlier provisions.
The second permissible objection is that “the vote of one or more electors has not been regularly given.” By its terms, this objection applies only to the electoral votes cast by lawfully appointed electors. The term “regularly given” is properly understood to encompass only a narrow set of legal infirmities with an elector’s vote, such as an elector voting for an ineligible candidate or voting on the wrong day, or an elector voting as the result of bribery or other improper influence.
All of these provisions combined improve on the law by better ensuring that Congress keeps to its constitutional role of counting electoral votes, and by making it more difficult for members of Congress to misuse the counting process to second-guess a state’s appointment of electors.
Clarifies how a majority of appointed electors will be calculated. [Section 109]
The 12th Amendment provides that “[t]he person having the greatest number of votes for President, shall be the President, if such number be the majority of the whole number of Electors appointed.” Because the total number of electors that may be appointed (and usually are appointed) by the states is 538, a candidate with 270 or more electoral votes wins the election. But neither the Constitution nor the original ECA made clear what happens to the calculation if either a state fails to appoint some or all of its allotted electors, or Congress rejects electoral votes.
This legislation addresses this ambiguity by providing that in cases in which Congress rejects the appointment of electors as unlawful, the “whole number of electors appointed”—the denominator in the calculation—will be reduced. The provision makes it more difficult to manipulate the process by attempting to deprive a candidate of a majority in order to trigger a “contingent election” of the president by the House of Representatives or the vice president by the Senate (as provided for in the 12th Amendment). Because the ECRA does not explicitly address electoral votes that are rejected by Congress as not lawfully cast by appointed electors (i.e., not regularly given), the denominator presumably would not change in that circumstance.
Reforms like those included in the ECRA significantly improve the law governing presidential elections and better protect the electoral vote-counting system from gamesmanship without benefitting either political party. Protect Democracy is pleased that Congress passed these vital updates to the Electoral Count Act to better protect future elections and the transfers of power that follow.
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