Electoral Count Act: Post-2020 Reform

Following the events of January 6, a bipartisan bill—the Electoral Count Reform and Presidential Transition Improvement Act of 2022—was introduced to clarify many of the vague provisions in the Electoral Count Act of 1887. This bill was eventually incorporated into the 2023 omnibus bill and became law on December 29, 2022.

Clarification on the Role of the Vice President

The Eastman Memo suggested that the Vice President could unilaterally decide which electoral votes to count. 3 U.S.C. § 15 now explicitly denies this power, stating that the role of the President of the Senate is solely ministerial during the electoral count. This clarification firmly closes any ambiguity about the VP’s authority to alter or reject electoral votes.

POWERS OF THE PRESIDENT OF SENATE.—

(1) MINISTERIAL IN NATURE.—Except as otherwise provided in this chapter, the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties.

(2) POWERS EXPLICITLY DENIED.—The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.

Higher Objection Threshold

Under the previous framework, any member of Congress could object to a state’s electoral votes, potentially leading to extended delays. However, with the amendments to 3 U.S.C. § 15, the process now mandates that any objection must be supported by at least one-fifth of both the Senate and the House.

Additionally, the law now specifies that objections to electoral votes are limited to two primary reasons: either the electors from a state were not lawfully certified according to the state’s certificate of ascertainment, or the electoral votes were not regularly cast.

(i) OBJECTIONS.—No objection or other question arising in the matter shall be in order unless the objection or question—

(I) is made in writing;

(II) is signed by at least one-fifth of the Sen- ators duly chosen and sworn and one-fifth of the Members of the House of Representatives duly chosen and sworn; and

(III) in the case of an objection, states clearly and concisely, without argument, one of the grounds listed under clause (ii).

(ii) GROUNDS FOR OBJECTIONS.—The only grounds for objections shall be as follows:

(I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1).

(II) The vote of one or more electors has not been regularly given.

Certification of Electoral Votes

The Eastman Memo suggested a scenario where uncertified electors could be counted in Congress by having state legislators send “alternative” slates of electors. As a response, 3 U.S.C. § 5 was revised to ensure that only electors who are lawfully certified by the chief election officer of the state would be accepted. The election officer issues a certificate of ascertainment, certifying the valid electors who are casting their votes under the law. This certificate, based on state laws established before the election, must be issued six days before the electors meet.

On January 6th, these certified electors’ votes are deemed conclusive in determining the rightful slate of electors, unless state or federal courts decide otherwise.

(a) IN GENERAL.—

(1) CERTIFICATION.—Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors, under and in pursuance of the laws of such State providing for such appointment and ascertainment enacted prior to election day.

(2) FORM OF CERTIFICATE.—Each certificate of ascertainment of appointment of electors shall—

(A) set forth the names of the electors appointed and the canvass or other determination under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast;

(B) bear the seal of the State; and

(C) contain at least one security feature, as determined by the State, for purposes of verifying the authen- ticity of such certificate.

Expedited Judicial Review

To address disputes over state certifications swiftly, 3 U.S.C. § 5 now establishes an expedited judicial review process for aggrieved presidential or vice-presidential candidates. The statute establishes a three-judge panel, located in the federal district where the state capital is located. Cases will be hear by circuit court judges, as well as a district court judge. Orders from this court are appealed directly to the supreme court, for an expedited review. This provision ensures that any legal challenges to the election results are resolved quickly, thereby reducing the window for political maneuvering and uncertainty.

(d) VENUE AND EXPEDITED PROCEDURE.—

(1) IN GENERAL.—Any action brought by an aggrieved candidate for President or Vice President that arises under the Constitution or laws of the United States with respect to the issuance of the certification required under section (a)(1), or the transmission of such certification as required under subsection (b), shall be subject to the following rules:

(A) VENUE.—The venue for such action shall be the Federal district court of the Federal district in which the State capital is located.

(B) 3-JUDGE PANEL.—Such action shall be heard by a district court of three judges, convened pursuant to sec- tion 2284 of title 28, United States Code, except that—

(i) the court shall be comprised of two judges of the circuit court of appeals in which the district court lies and one judge of the district court in which the action is brought; and

(ii) section 2284(b)(2) of such title shall not apply.

(C) EXPEDITED PROCEDURE.—It shall be the duty of the court to advance on the docket and to expedite to the greatest possible extent the disposition of the action, consistent with all other relevant deadlines established by this chapter and the laws of the United States.

(D) APPEALS.—Notwithstanding section 1253 of title 28, United States Code, the final judgment of the panel convened under subparagraph (B) may be reviewed directly by the Supreme Court, by writ of certiorari granted upon petition of any party to the case, 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.

(2) RULE OF CONSTRUCTION.—This subsection—

(A) shall be construed solely to establish venue and expedited procedures in any action brought by an aggrieved candidate for President or Vice President as specified in this subsection that arises under the Constitution or laws of the United States; and

(B) shall not be construed to preempt or displace any existing State or Federal cause of action.

Adjusting Election Day

Originally, 3 U.S.C. § 2 stated that if a state failed to choose its electors on the designated day, the state legislature was permitted to appoint them later. However, 3 U.S.C. § 21 now includes a narrow provision for states that select electors through a popular vote. Under extraordinary and catastrophic circumstances, if a state must alter its voting period and has pre-existing laws enacted before election day to accommodate such changes, the term ‘election day’ will encompass this adjusted voting period.

(1) ‘election day’ means the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President held in each State, except, in the case of a State that appoints electors by popular vote, if the State modifies 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 such day, ‘election day’ shall include the modified period of voting.

Severability

3 U.S.C. § 22 introduces a severability clause, ensuring that if any part of the law is declared unconstitutional, the rest remains effective and enforceable. Severability clauses, are increasingly common in complex legislation, and this particular inclusion is likely influenced by the discussions about the 12th Amendment, as highlighted by John Eastman.

If any provision of this chapter, or the application of a provision to any person or circumstance, is held to be unconstitutional, the remainder of this chapter, and the application of the provisions to any person or circumstance, shall not be affected by the holding.

Other Changes

Amends 3 U.S.C. § 1, to specify that electors must be appointed on election day in accordance with state laws enacted prior to election day.
Amends 3 U.S.C. § 4, stipulating that laws governing vacancies in the Electoral College must be enacted before election day.
Amends 3 U.S.C. § 6, refining the responsibilities of the Archivist of the United States regarding the preservation, public record status, and inspection of certificates of ascertainment.
Amends 3 U.S.C. § 7, modifying the date for the meeting of the Electoral College to one day later, and mandating that procedures are followed in the law enacted prior to election day.
Amends 3 U.S.C. § 11, which removes the requirement of electoral votes to be sent in the mail.
Amends 3 U.S.C. § 12, addressing the scenarios where certificates fail to reach their intended recipients and provides alternative measures.
Refines 3 U.S.C. § 15 to explicitly state how a majority is determined. If a state fails to appoint electors or if objections are sustained, the total number of electors for determining a majority is reduced accordingly.
Refines 3 U.S.C. § 17, which sets limits on debate and parliamentary procedure during the joint session of Congress for counting electoral votes. Establishes that debate is equally divided and controlled by the Majority Leader and Minority Leader.