Electoral Count Act

The Electoral Count Act, or the Electoral Count Act of 1887, 24 Stat. 373[1] is a United States federal law establishing procedures for the counting of electoral votes by Congress following a presidential election. The law has subsequently been codified, with some modifications, into positive law[2] in Title 3, Chapter 1 of the United States Code, which also contains other provisions related to presidential elections and vacancies. The law was enacted in the aftermath of the disputed 1876 presidential election, in which several states submitted competing slates of electors and a divided Congress was unable to resolve the deadlock.

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The law has been criticized since it was enacted, with an early commenter describing it as "very confused, almost unintelligible."[3]:643 Modern commenters have stated that the law "invites misinterpretation," observing that it is "turgid and repetitious" and that "[i]ts central provisions seem contradictory."[4]:543 For example, one key ambiguity involves a situation where multiple slates of electors are sent from a state, and the House and Senate cannot agree whether the law requires the slate certified by the governor to count, or requires that no slate should be counted.[5]

The central provisions of the law have not been seriously tested in a disputed election, with the closest being the 2000 election which was ultimately resolved before the electors cast their votes. However, the law's timing provisions did play a role in court decisions regarding that election.

Background

Electoral College
Main article: United States 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," with all states currently using some form of popular election. The electors are "appointed" at the national election held on Election Day, which occurs "on the Tuesday next after the first Monday in November."[6] 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,"[7] with meetings of electors typically held in each state capital.

The Twelfth Amendment 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."[8] 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."[8][9]

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:

First, does the Constitution give the President of the Senate sole power to exercise whatever discretion the count involves, or are the two Houses of Congress the final judge of the validity of votes? Secondly, is the power to count merely the power to enumerate votes given by electors declared by state authority to have been appointed, or is there power to determine the correctness of the state authority's declaration and to examine the validity of the acts of the electors? Thirdly, whatever the scope of the power, how is the evidence necessary to a decision to be presented, and by what means is the decision to be made?[10]:323–24

In 1865, Congress asserted "total power over the electoral vote" with the adoption of the Twenty-second Joint Rule.[10]:328 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.[10]:328

As Reconstruction ended, the House was controlled by Democrats in 1875 for the first time since before the war, with Democrats reflecting a greater sensitivity toward state's rights. Following the 1876 Hayes-Tilden crisis, the Electoral Count Act was eventually enacted by a Republican Senate and Democratic House in 1887 as "a compromise measure in an atmosphere relatively free of partisan pressures."[10]:328 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."[10]:335

State determination of controversies

Note: in this article, the term "state" includes the District of Columbia, and the term "governor" includes the mayor of the District of Columbia.[11] The District of Columbia appoints electors pursuant to the Twenty-third Amendment.

Safe harbor

Section 2 of the Electoral Count Act (now 3 U.S.C. § 5) provides an initial opportunity for states to finalize their own controversies regarding the appointment of electors. The provision applies if the state has provided, "by laws enacted prior to the day fixed for the appointment of the electors" – that is, through laws enacted before Election Day – for its "final determination" of any "controversy or contest" by "judicial or other methods or procedures," and such "determination" has been made "at least six days before the time fixed for the meeting of electors."[12] If the determination is made "pursuant to such law" existing before Election Day, then that 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."[12]

This section does not require a state to make a final determination by that date in order for its electoral votes to ultimately be counted by Congress. Rather, the Supreme Court has explained that this section "creates a 'safe harbor' insofar as congressional consideration of its electoral votes is concerned. If the state legislature has provided for final determination of contests or controversies by a law made prior to Election Day, that determination shall be conclusive if made at least six days prior to said time of meeting of the electors."[13]:77–78 In addition, since the section "contains a principle of federal law that would assure finality of the State's determination if made pursuant to a state law in effect before the election, a [state] legislative wish to take advantage of the 'safe harbor' would counsel against any construction of [state law] that Congress might deem to be a change in the law."[13]:78

2000 election

Following the 2000 election, the Supreme Court in Bush v. Palm Beach County Canvassing Board remanded the election contest to the Florida Supreme Court, asking it to consider the implications of this section and the "safe harbor." In Bush v. Gore, the U.S. Supreme Court later observed that the state court had said that "the [state] legislature intended the State's electors to 'participate fully in the federal electoral process,' as provided in 3 U.S.C. § 5."[14]:110 With the deadline date having arrived, the Court held that because the state did not have a recount procedure in place that would both meet the deadline and comply with due process standards (as identified by the majority), the recounts ordered by the state court would be terminated.[14]:110 This effectively ended the election contest after Al Gore declined to pursue further litigation.

Ascertainment process

During the election of 1876, Congress received electoral votes from multiple slates of electors in several Southern states. While the Twelfth Amendment describes how electors must meet and cast their votes, it did not foresee multiple competing slates of electoral votes from the same state. To help avoid this problem in future elections, Section 3 of the Electoral Count Act created an "ascertainment" process to help Congress determine who the state's valid electors are, including a role for the governor.

Certificate of ascertainment

Section 3 (now 3 U.S.C. § 6) makes it "the duty of the executive of each State" – the governor – to prepare a certificate of ascertainment identifying the electors that have been appointed by a state. The certificate must set forth the names of the electors and the votes they received, as well as the names of all other candidates for elector and votes received, and must bear the seal of the state. The governor must "communicate [the certificate] by registered mail to the Archivist of the United States," and all of this must be done "as soon as practicable after the conclusion of the appointment of electors in [a] State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment...." The governor must also deliver duplicate-originals of the certificate of ascertainment to the electors on or before the day on which they are required to meet and cast their votes.[15]

Certificate of final determination

In the case of contested elections, 3 U.S.C. § 6 also states that "if there shall have been any final determination in a State in the manner provided for by [state] law of a controversy or contest," then the governor must, "as soon as practicable after such determination," communicate, "under the of the State ... a certificate of such determination in form and manner as the same shall have been made."[15]

Notably, the relevant clause in the modern law (3 U.S.C. § 6) differs substantively from the original clause in Section 3 of the 1887 law, as shown below:

  • Old version: "if there shall have been any final determination in a State of a controversy or contest as provided for in section two of this act, it shall be the duty of the governor [to transmit a certificate of such determination etc.]"
  • New version: "if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the governor [etc.]

Under the original version, the clause appears to only apply in situations where the final determination satisfies the Section 2 "safe harbor." The current version requires a certificate to be sent regardless of whether the safe harbor applies. The difference may be relevant since Section 4 (now 3 U.S.C. § 15) prohibits Congress from rejecting any electors "whose appointment has been lawfully certified to according to [3 U.S.C. § 6]."[16] (See Substantive counting rules below.)

This process was used by the state of Florida following the 2000 election when it submitted a "Certificate of Final Determination of Contests Concerning the Appointment of Presidential Electors" that was signed by the governor and secretary of state. As narrated by an attorney in the Office of the Federal Register at the time:

[O]n December 12, the Supreme Court announced its decision in favor of Governor Bush.... While other lawyers argued over the full meaning of the Court's decision in Bush v. Gore, the Office of the Federal Register pored over it for a procedural path to formally end the dispute over Florida's electors. Because federal law did not account for a "re-ascertainment" of electors after a partial recount of votes, we had to devise a new form of document to suit the Court's opinion. The Florida Secretary of State submitted this unique final determination to us, and from our procedural point of view, the Florida electoral fight came to an end.[17]

Certificate of vote

As noted above, the Twelfth Amendment simply requires the electors to sign, certify, seal, and transmit their votes (now known as the "certificate of vote") to the president of the Senate. However, a clause in Section 3 required the governor to deliver certificates of ascertainment to the electors, and required the electors to "inclose[] and transmit[]" the certificates of ascertainment along with their votes. The modern provision (3 U.S.C. § 9) requires the electors to create six copies of their certificates of vote, and "annex to each of the certificates [of vote]" one of the "lists of electors" which "shall have been furnished to them by direction" of the governor."[18]

Role of the Archivist

Section 3 originally required the transmission of certificates to the Secretary of State. The current law (3 U.S.C. § 6) assigns the relevant duties to the Archivist of the United States. The law requires the Archivist to preserve the certificates for one year, make them "a part of the public records of his office," and make them "open to public inspection."[15] At the first meeting of the new Congress, the Archivist must transmit to both houses "copies in full of each and every such certificate so received."[15] In modern practice, these and other administrative tasks related to the Electoral College are handled by the Office of the Federal Register (OFR) within the National Archives and Records Administration.

In the current era, OFR mails information packets to the state governors in the fall of each election year. After the election, OFR attorneys "carefully vet the facial legal sufficiency" of the certificates they have received. If correctable errors are discovered, they try to remedy them before Congress convenes the joint session to count the votes. While this process is not set out in statute, "the logic of the law" leaves it to the Office "to inform the officers of the House and Senate of any irregularities and to coordinate state and federal actions for the final counting of votes."[17]

There are "more than a few things that can go wrong." OFR attorneys must sometimes track down "bewildered bureaucrats" surprised to learn of their duties, with some state officials even claiming that their state has "abolished" the Electoral College. In some instances, federal officials including members of Congress have been chosen to serve as electors, in violation of Article II which states that "no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector."[19] OFR has retrieved certificates from a variety of places, "rummaged through mailbags" on Christmas Eve, and called on state police to help find electors who forgot to sign the Certificate of Vote, all of which must be corrected before Congress meets to count the votes.[17]

Following the 2000 election, the Florida Legislature contacted OFR seeking to learn the technical process to revoke the ascertainment of electors certified by the secretary of state, and replace it with a new set of electors to be appointed directly by the Legislature under Article II of the Constitution. OFR advised that while there was no precedent for such a "do-over," it would "work out a way to follow the Constitution and federal law." The Supreme Court decision in Bush v. Gore made the matter moot.[17]

Counting procedures

Section 4 of the Electoral Count Act (now 3 U.S.C. § 15) provides both detailed procedures and counting rules for specific situations. It significantly expands upon the Twelfth Amendment, which states only 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."[8]

This central section of the Electoral Count Act has been significantly criticized. It is a "mammoth section some 814 words in length"[4]:n.8 that makes for difficult parsing, and "[m]any of its substantive rules are set out in a single sentence that is 275 words long."[4]:543

Procedures for joint session

Under Section 4 (3 U.S.C. § 15), Congress is required to be in session on January 6th following the election to count the votes, although this date can be changed by law. Notably, due to the 20th Amendment the joint session is conducted by the new Congress whose term begins on January 3rd, rather than the outgoing lame-duck Congress. The Senate and House must meet in the House Chamber at "1 o'clock in the afternoon" on January 6th, and the president of the Senate – the sitting vice president of the United States – is the presiding officer.[16] Section 7 (3 U.S.C. § 16) specifies the seating arrangements in the House chamber.[20]

Two tellers must be "previously appointed" by the Senate and two tellers by the House of Representatives. The president of the Senate must open all the "certificates" and "papers purporting to be certificates" of the electoral votes, and hand them to the four tellers as they are opened. The certificates and papers must be "opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A." The tellers, "having read the [papers] in the presence and hearing of the two Houses," must "make a list of the votes as they shall appear from the ... certificates."[16]

If there are any objections to the returns from any state (see Substantive counting rules below), they must be resolved before the process can continue to the next state: "No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of."[16]

Debate rules

The structure of the Electoral Count Act's procedural provisions generally requires that any questions arising during the counting process be determined by the two houses acting separately, rather than by both houses together on the House floor. Section 5 of the Act (now 3 U.S.C. § 18) states that "the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw." Section 6 (now 3 U.S.C. § 17) states that whenever the two Houses have separated "to decide upon an objection ... or other question arising in the matter," each Senator and Representative may "speak to such objection or question" for five minutes, and not more than once.[21] After the debate has lasted two hours, the presiding officer of each House must "put the main question without further debate."[21] Once the two houses have both voted, "they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted."[16]

Section 7 (now 3 U.S.C. § 16) states that the joint session cannot be dissolved "until the count of electoral votes shall be completed and the result declared."[20] No recess can be taken "unless a question shall have arisen in regard to counting any such votes, or otherwise under [Title 3, Chapter 1]," in which case either House, acting separately, can recess itself until 10:00 AM the next day (Sunday excepted).[20] But if the counting of the electoral votes and the declaration of the result have not been completed before the fifth calendar day after the joint session began, "no further or other recess shall be taken by either House."[20]

Role of the vice president

The Constitution instructs that electoral votes must be sent to the president of the Senate – who is the sitting vice president of the United States – and that the Senate president must "open all the certificates" in the presence of both houses.[8] However, the sitting vice president is sometimes a candidate for president in the election, is often a candidate for re-election to the vice presidency, and is almost always a partisan with a keen interest in the outcome. Recognizing this, one key purpose of the Electoral Count Act's procedural provisions is "to drain away as much power as possible from the Senate president, whom the [law] appoints to preside at the joint session when Congress counts the votes."[4]:634

As the custodian for papers, the Senate president is required by the Constitution to "open all the certificates,"[8] which the Act further describes as "all the certificates and papers purporting to be certificates."[16] In doing so, the goal of the Act "was to reduce the Senate President's discretionary power as gatekeeper to the absolute minimum...."[4]:639 Indeed, in one case from 1889, papers sent as a "practical joke" have been presented to the joint session.[4]:638 Whether the Senate president can be required to present or not present any particular paper is an open question, but one commentator argues that concurrent action by both houses would settle the matter while disagreement between the houses would see the Senate president's decision upheld.[4]:639

As the presiding officer during the joint session, the Electoral Count Act's provisions governing debate and procedure are unusually specific (see above), with one early commentator describing them as "exhaustive" and as good "as human wit can divine."[3]:652[4]:n.580 These provisions "seem designed to drain as much power as possible away from the Chair and give it to the two houses."[4]:640 After the 2000 election, Vice President Al Gore ruled that a number of procedural motions were out of order by extending the Act's formal requirements for substantive objections – that is, to be presented in writing and signed by both a Representative and a Senator – to procedural questions.[4]:648–49 This suggests that if procedural motions and appeals were made in that manner, they would be allowed and the two houses would have to separate to consider them.[4]:649

Substantive counting rules

The structure of Section 4 (3 U.S.C. § 15) separates the substantive counting rules primarily in two sentences. The first describes the rule for making objections, and includes limits on congressional rejection of votes where "but one return [from the state] has been received." The second, very lengthy sentence relates to situations where "more than one return or paper purporting to a return" has been received."[16]

Single return

Objections and limits on congressional inquiry

Under Section 4 (3 U.S.C. § 15), upon reading of "any certificate or paper, the president of the Senate shall call for objections, if any." Every objection must be made in writing, and must "state clearly and concisely, and without argument," the ground for the objection. It must be signed by at least one Senator and one member of the House of Representatives before the objection can be received. Once all objections to any vote or paper from a state have been received and read, the Senate withdraws and the two houses consider the objections separately.

However, when considering such objections, Section 4 requires that – assuming "but one return [from the state] has been received" – no electoral votes from electors whose appointment has been "lawfully certified" under the ascertainment process (see above) can be rejected. The two houses may only reject a vote or votes if both houses agree that such vote(s) have not been "regularly given" by an individual elector or electors.[16]

This provision of the law was designed to resolve the significant question in the nineteenth century regarding the proper role of Congress in reviewing controversies about which electors a state had appointed. It has been described as reflecting a balance between giving Congress unfettered ability to reject a state's electoral votes vs. deferring to state determinations, which was a significant topic of discussion during the Reconstruction era.[4]:614–15 Under the law, Congress may still reject a state's electors if both houses decide to do so, but only when they determine either that the appointment of electors was not "lawfully certified" by the governor under the ascertainment process, or that the votes themselves were not "regularly given" by the electors.[4]:616

Notably, this portion of Section 4 applies to all cases where a single return is received, regardless of whether the safe harbor under Section 2 (3 U.S.C. § 5) applies or not. Since safe harbor determinations are supposed to be "conclusive," there is some tension between the provisions since Section 4 still allows for Congress to reject a state's votes. One commentator finds the conflict "more apparent than real," arguing that Section 4 only allows for rejection of safe-harbor electoral votes in cases involving "the electors' post-ascertainment conduct" and to "constitutional infirmities in their status as electors or in the votes they cast."[4]:616

"Regularly given"

The phrase "regularly given" is generally understood as referring to issues regarding an elector's actual vote, rather than whether the elector has been properly appointed.[4]:671 It could include, for example, situations where an elector cast a particular vote because of bribery or corruption,[4]:670 or mistake or fraud.[10]:338 It may also include situations where the elector did not vote in accordance with applicable constitutional and statutory requirements.[4]:670[10]:338

Multiple returns

Origins

Congress was confronted with the problem of multiple returns following the election of 1876. Louisiana and South Carolina initially reported returns favoring the Democrat (Tilden), but results were marked by electoral fraud and threats of violence against Republican voters, including an impossible 101 percent turnout in South Carolina. Republican canvassing boards rejected some Democratic votes and certified the election of Republican governors and presidential electors. In response, Democrats established rival state governments under the leadership of their gubernatorial candidates, who then certified Democratic electors.

In Florida, the Republican returning board certified Hayes and the Republican gubernatorial candidate as winners, but the Florida Supreme Court overruled them, and awarded the governorship to the Democrat who then announced that Tilden had carried Florida. In Oregon, all sides agreed that Hayes had won the state, but the Democratic governor determined that one elector (John W. Watts) was ineligible and replaced him with a Democrat (C.A. Cronin). In Florida, Louisiana, and South Carolina, both slates of electors assembled and cast conflicting votes, while in Oregon both Watts and Cronin cast ballots. From each of these four states, two sets of returns were transmitted to Washington, D.C.

Approach

In cases where multiple returns have been submitted from a state, Section 4 (3 U.S.C. § 15) seeks to "direct[] Congress away from an open-ended search for the proper return, and towards the simpler issues of identifying the state's final determination authority and whether that institution had reached its decision according to the terms and conditions of [3 U.S.C. § 5]."[4]:627 It seeks to "reduce to a minimum the cases where any difference can properly arise."[22]:1020 In one sentence of 275 words, the law appears to envision three different scenarios:

First, if more than one return, or paper purporting to be a return, from a state is received by the president of the Senate, then the only votes to be counted are those that have been "regularly given" by those electors (or their validly-appointed successors) who are shown by the "determination" mentioned in 3 U.S.C. § 5 ("safe harbor") to have been appointed, assuming the determination has been made.[16] That is, if there are multiple returns yet only one is compliant with the safe harbor, then the safe harbor return must be counted as the true return, assuming the votes have been "regularly given" by the electors.
Second, in case the question arises "which of two or more ... State authorities determining what electors have been appointed, as mentioned in [3 U.S.C. § 5], is the lawful tribunal of such State," then votes "regularly given" will only be counted from electors that the two houses, acting separately, concurrently decide is supported by "the decision of such State so authorized by its law."[16] That is, if two or more returns from a state can claim the safe harbor, then neither will be counted unless both houses agree to count one of them as the true return supported by state law. This appears to be Congress' response to the problem of dueling state governments that arose during the election of 1876.
Third, if there has been "no such determination of the question in the State aforesaid," votes will only be counted that the two houses concurrently decide were cast by "lawful electors appointed in accordance with the laws of the State," unless the two Houses, acting separately, concurrently decide "such votes not to be the lawful votes of the legally appointed electors of such State."[16] Here, there are multiple returns yet none can claim the safe harbor. Read in isolation, it would mean that one return can be counted as the true return if both houses agree it complies with state law, unless both houses further agree the votes themselves were not "regularly given" by the electors.

However, this critical sentence then follows: "But if the two Houses shall disagree in respect of the counting of such votes, then ... the votes of the electors whose appointment has been certified by the [governor] of the State, under the seal thereof, shall be counted."[16]

Scope of governor's tiebreaker

Commentators have differed over the interplay between the governor's "tiebreaker" sentence and the lengthy 275-word sentence that precedes it. There is broad agreement that the tiebreaker must modify the third scenario of multiple returns where none can claim the safe harbor. However, a possible ambiguity involves the second scenario in which multiple returns do claim the safe harbor:

One conceptual possibility is that this new sentence operates upon the immediately preceding clause, the one concerning what to do when none of multiple returns are claimed to have Safe Harbor status. The other conceptual possibility is that this new sentence operates upon all preceding clauses involving multiple returns, both when none claim Safe Harbor status and when more than one so claim.[23]:356

L. Kinvin Wroth, writing in 1960, stated that the tiebreaker only applies to the third scenario, in which there has been no safe harbor determination by state authorities. Thus, in the second scenario where two returns claiming the safe harbor are received, "[i]f the Houses cannot agree ... no vote from the state in question is counted. This result follows regardless of the governor's action."[10]:343 In 2001, a Congressional Research Service report authored by Jack Maskell "embraced Wroth's view of the statute, citing and quoting Wroth's article extensively."[24][23]:357 Maskell's CRS report also added more arguments based on the legislative history of the Electoral Count Act.[24][23]:357

For example, Senator George Hoar, who introduced the tiebreaker as a floor amendment, mentions it only in the context of the third scenario where there is no safe harbor determination.[4]:663 Senator Hoar stated that "if the amendment which I have proposed shall be adopted no case can arise under this bill of rejecting the vote of any State except in the single case of dual State governments,"[22]:1020 seemingly referring to the second scenario above. Hoar said the bill tells a State: "Appoint your own judicature in your own fashion to determine this question; if you do not do it, we shall assume that you desire that the certificate of your governor shall determine it."[22]:1022

In contrast, Stephen A. Siegel argues textually that based on punctuation, the tiebreaker provision should be read "as relating to the entire preceding sentence, not just to the clause after the final semicolon."[4]:664 Siegel viewed the main purpose of amendments that led to the tiebreaker being added as being to "respond to congressmen concerned about the power of one house of Congress to disenfranchise a state when there were multiple returns." He reads the legislative history differently, and notes that the conference report states as follows:

The general effect of all [the reconciling amendments], and of the bill as report ..., is to provide for the decision of all questions that may arise as to its electoral vote to the State itself, and where, for any reason, that fails, then the Houses circumscribe their power to the minimum under any circumstances to disfranchise a State, and such result can only happen when the State shall fail to provide the means for the final and conclusive decision of all controversies as to her vote.[4]:664–65[25]

Siegel also argues that if the two Houses disagree about whether a return claiming the safe harbor has actually satisfied the safe harbor requirements, the Wroth-Maskell reading would prevent them from counting any other return. That is, "a return that claims (safe harbor) status may not trump all, but it does forestall all," which Siegel argues is not what Congress could have intended.[4]:668–69

Results

Once the votes have been "ascertained and counted in the manner and according to the rules ... provided" by the Act, "the results ... shall be delivered [by the tellers] to the president of the Senate." The Senate president "shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice-President of the United States."[16] An earlier version of the bill would have required the Senate president to announce "the names of persons, if any, elected," but the phrase was stricken with the Conference Report explaining that the reason for the change was "to prevent the President from doing more than announcing the state of the vote as ascertained and delivered to him by the tellers...."[4]:642–43[26]

Majority of electors

To be elected by the electoral college, the Constitution requires that a candidate receive "a majority of the whole number of Electors appointed."[8] One early virtue of this wording was that if certain states decided not to participate in the election by failing to appoint any electors, a president could still be elected by a majority of those who were appointed.[10]:324[4]:653

However, when Congress rejects a state's electoral vote, or chooses not to count any of multiple competing returns, "the effect that decision has on the denominator that determines whether a candidate has more than fifty percent of the electoral vote is an entirely open issue."[4]:653.For example, if there are currently 538 total votes, and all votes from a state that appointed 20 electors are rejected, a majority could be either remain as 270 votes out of 538, or be reduced to 260 votes out of 518. Historical precedent is split, and in those previous cases where a state's electors were rejected or considered for rejection, it has never mattered as to whether the winning candidate had achieved a majority. "Perhaps because the diversity of strongly held views might imperil the delicate web of compromises supporting the [Electoral Count Act], Congress avoided addressing the issue in the [Electoral Count Act]."[4]:654

A future joint session "might be called upon to address the effect of this situation" without clear precedents.[27]:5 While Congress would likely be able to decide the issue by a vote of both houses during a future session, if one house finds that a candidate has achieved a majority and the other house disagrees, the Electoral Count Act provides no default rule nor any path forward. Nor can the Senate president play any role in deciding the matter, since his or her role in delivering results is strictly limited by the Act to receiving the tellers' lists and "announc[ing] the state of the vote."[4]:653. The Senate president does not announce "the names of persons elected," since Congress specifically rejected that option as explained above.

If no candidate is determined to have a majority, then the contingent election procedure described in the Twelfth Amendment would be used.[8] The House, voting by states, would elect the president, and the Senate would elect the vice president.

Failure to complete process

By imposing strict limits on procedures, debate, and recesses, the Electoral Count Act is designed to help Congress achieve an election result before the term of the outgoing president ends. Nevertheless, if no new president (or vice president) has been elected by that time, the Twentieth Amendment and the Presidential Succession Act would mean that the Speaker of the House would be sworn in as acting president. Notably, Section 1 of the amendment makes clear that the terms of the outgoing president and vice president shall end on January 20 at noon; they cannot be extended except by constitutional amendment.

One commentator has described situations in which ambiguities under the Electoral Count Act could cause the two houses to disagree about whether the electoral count has been completed or not,[23]:360 or to disagree about whether a new president has been chosen.[23]:362 The situations described could potentially leave matters unclear about who is president on January 20, including simultaneous claims from different individuals to the presidency.

Constitutionality

At least one commentator, Vasan Kesavan, has argued at length that the Electoral Count Act is unconstitutional.[28]:1694–1792

References
  1. 24 Stat. 373 (Feb. 3, 1887).
  2. Office of the Law Revision Counsel of the U.S. House of Representatives, Positive Law Codification, visited Aug. 4, 2020.
  3. John W. Burgess, The Law of the Electoral Count, 5 Pol. Sci. Q. 633 (1888).
  4. Stephen A. Siegel, The Conscientious Congressman's Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541 (2004)
  5. Ruger, Todd (June 1, 2020). "Old law could leave 2020 presidential race in stalemate". Roll Call. Retrieved August 3, 2020.
  6. 3 U.S.C. 1
  7. 3 U.S.C. 7.
  8. U.S. Const. amdt. XII.
  9. U.S. Const. art. II § 1.
  10. L. Kinvin Wroth, Election Contests and the Electoral Vote, 65 Dick. L. Rev. 321 (1960).
  11. See, e.g., National Archives, Roles and Responsibilities in the Electoral College Process
  12. 3 U.S.C. § 5.
  13. Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000).
  14. Bush v. Gore, 531 U.S. 98 (2000).
  15. 3 U.S.C. § 6
  16. 3 U.S.C. § 15.
  17. Michael White, The Electoral College: A Message from the "Dean", National Archives, Prologue Magazine, Fall 2008, Vol. 40, No. 3.
  18. 3 U.S.C. § 9
  19. U.S. Const. art. II § 1 cl. 2.
  20. 3 U.S.C. § 16.
  21. 3 U.S.C. § 17.
  22. [17 Cong. Rec. 1019] (statement of Sen. George Hoar) (Feb. 1, 1886)
  23. Edward B. Foley, Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management, 51 Loy. U. Chi. L. J. 309 (2020)
  24. Jack Maskell, Cong. Research Serv., Counting Electoral Votes in Congress – Multiple Lists of Electors from One State (2001)
  25. 18 Cong. Rec. 668 (1886) (emphasis added by Siegel)
  26. 18 Cong. Rec. 668 (1886).
  27. Jack Maskell and Elizabeth Rybicki, Congressional Research Service, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, Nov. 15, 2016.
  28. Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653 (2003).
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