Electoral Count Act
The Electoral Count Act of 1887 is a United States federal law that added to procedures set out in the Constitution of the United States for the counting of electoral votes following a presidential election. In its unamended form, it last governed at the time of the 2021 United States Electoral College vote count. The Act has since been substantially amended by the Electoral Count Reform and Presidential Transition Improvement Act of 2022.
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. 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.
The Act aimed to minimize congressional involvement in election disputes, instead placing the primary responsibility to resolve disputes upon the states. 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." 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 relegated Congress to rejecting electoral votes in only a narrow class of disputes: when a state presented more than one set of electors, when "the electors' votes were not 'regularly given'", or when "the governor had not 'lawfully certified' the electors' appointment". Congress could reject votes under the Act for specific defects: "if a state submits multiple sets of electoral votes", if there were "electors who were constitutionally ineligible to hold the elector’s office, who balloted corruptly, or who balloted in a way that violated post-appointment constitutional or statutory requirements", if "the electors’ gubernatorial certification resulted from ministerial error", or if "the electors’ election was itself so irregular as to be fraudulent or violate constitutional norms".
The central provisions of the law were never seriously tested in a disputed election. Since the bill was enacted, some have doubted whether the Act could bind a future Congress. Since the Constitution gives Congress the power to set its own procedural rules, it is possible that simple majorities of the House and Senate could set new rules for the joint session convened to count electoral votes. In the contentious 2000 U.S. presidential election, the law's timing provisions did play a role in court decisions, such as Bush v. Gore. The law has been criticized since it was enacted, with an early commenter describing it as "very confused, almost unintelligible." Modern commenters have stated that the law "invites misinterpretation", observing that it is "turgid and repetitious", and that "ts central provisions seem contradictory."
Under the Twelfth Amendment, the vice president opens the electoral certificates. The act clarified the vice president's limited role in the count. 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/her party's defeat, and his/her own on some of those occasions. Charles Curtis, Richard Nixon, Hubert Humphrey, Walter Mondale, Dan Quayle, Al Gore, Mike Pence, and Kamala Harris all notably presided over counts that handed them a loss.
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. The bill was signed into law by President Joe Biden on December 29. 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.
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". 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", with meetings of electors typically held in each state capital.The Twelfth Amendment, ratified in 1804, requires the electors to "make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate". It also specifies, as did the clause in Article II, 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."
In discussions of the law, the term "state" includes the District of Columbia, and the term "governor" includes the mayor of the District of Columbia. The District of Columbia appoints electors pursuant to the Twenty-third Amendment.
File:A certificate for the electoral vote for Rutherford B. Hayes and William A. Wheeler for the State of Louisiana dated 1876 part 6.jpg|thumb|417x417px|Pre-Electoral Count Act 1876 Louisiana electoral vote certificate for Rutherford B. Hayes
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:In 1865, Congress asserted "total power over the electoral vote" with the adoption of the Twenty-second Joint Rule. 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.
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.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.
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."
In 1886, the Democratic House passed a version of the act similar to the ones passed by the Senate previously, which was then enacted by a Republican Senate and Democratic House with minor concessions to the Democratic position as "a compromise measure in an atmosphere relatively free of partisan pressures" on February 4, 1887. Under the law, while Congress "claimed full power to validate votes, its role was limited to cases in which a state had failed to settle its own disputes and to questions beyond state competence." The act was stewarded through the Senate by George Frisbie Hoar throughout its many versions.
State determination of controversies
Section 2 gives each state an opportunity to resolve disputes relating to the appointment of electors if a state has enacted a law before Election Day 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." 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."In the ruling of Bush v. Gore, the United States Supreme Court stated "the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution.... The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors."