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Electoral Count Act

Electoral Count Act of 1887
Great Seal of the United States
Long titleAn act to fix the day for the meeting of the electors of President and Vice-President, and to provide for and regulate the counting of the votes for President and Vice-President, and the decision of questions arising thereon.
Enacted bythe 49th United States Congress
EffectiveFebruary 3, 1887 (1887-02-03)
Citations
Public lawPub. L.Tooltip Public Law (United States) 49–90
Statutes at Large24 Stat. 373 through 24 Stat. 375 (3 pages)
Legislative history
Major amendments
Electoral Count Reform and Presidential Transition Improvement Act of 2022
United States Supreme Court cases
Bush v. Gore
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The Electoral Count Act of 1887 (ECA) (Pub. L.Tooltip Public Law (United States) 49–90, 24 Stat. 373,[1] later codified at Title 3, Chapter 1[2]) 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.[3] 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.[4]

The Act aimed to minimize congressional involvement in election disputes, instead placing the primary responsibility to resolve disputes upon the states.[4][5] 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."[6][7] 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 thus relegated Congress to resolving only a narrow class of disputes, such as if a governor had certified two different slates of electors or if a state failed to certify its results under the Act's procedures.[8] Congress could also reject votes under the Act for other specific defects, such as ministerial error, if an elector or candidate was ineligible for office, or if the electoral college votes were not "regularly given."[8][9]

The counting of ballots under the act made the cover of the first issue of Newsweek in 1933

The central provisions of the law were never seriously tested in a disputed election.[8] Since the bill was enacted, some have doubted whether the Act could bind a future Congress.[9] 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.[10] 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."[11]: 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."[12]: 543 

Under the Twelfth Amendment, the vice president (as President of the Senate) opens the electoral certificates. The act clarified the vice president's limited role in the count.[4][8][9] 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 party's defeat, and his own on some of those occasions. Richard Nixon, Walter Mondale, Dan Quayle, Al Gore, Dick Cheney, Joe Biden, and Mike Pence all notably presided over counts that handed them, or their party, a loss.[13][14]

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.[15] The bill was signed into law by President Joe Biden on December 29.[16][17] 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.[10]

  1. ^ "49 Congressional Record, Vol. -1805, Page 1887 (373)" (PDF).
  2. ^ "Positive Law Codification". uscode.house.gov. Office of the Law Revision Counsel. Retrieved January 2, 2021.
  3. ^ Koger, Gregory (January 4, 2021). "The Origins of the 1887 Election Count Act". Mischiefs of Faction. Retrieved January 4, 2021.
  4. ^ a b c Foley, Edward (2016). Ballot battles : the history of disputed elections in the United States. New York: Oxford University Press. p. 153. ISBN 978-0-19-023528-4. LCCN 2015025434. OCLC 928386780.
  5. ^ Cite error: The named reference :0 was invoked but never defined (see the help page).
  6. ^ Cite error: The named reference 3usc5 was invoked but never defined (see the help page).
  7. ^ Foley, Edward B. "Opinion | It's over. When the electoral college announces Biden's win, Republicans must move on". The Washington Post. ISSN 0190-8286. Retrieved December 28, 2020.
  8. ^ a b c d Siegel, Stephen A. (2004). "The Conscientious Congressman's Guide to the Electoral Count Act of 1887" (PDF). Florida Law Review. Vol. 56, p. 652.
  9. ^ a b c Cite error: The named reference Kesavan was invoked but never defined (see the help page).
  10. ^ a b Siegel, Stephen A. (2004). "The Conscientious Congressman's Guide to the Electoral Count Act of 1887" (PDF). Florida Law Review. Vol. 56, pp. 550, 560.
  11. ^ Burgess, John W. (1888). "The Law of the Electoral Count". Political Science Quarterly. 3 (4): 633–653. doi:10.2307/2139115. ISSN 0032-3195. JSTOR 2139115 – via JSTOR.
  12. ^ Siegel, Stephen A. (2004). "The Conscientious Congressman's Guide to the Electoral Count Act of 1887" (PDF). Florida Law Review. Vol. 56. p. 541.
  13. ^ Jalonick | AP, Mary Clare. "EXPLAINER: How Congress will count Electoral College votes". The Washington Post. ISSN 0190-8286. Retrieved December 28, 2020. [dead link]
  14. ^ Fandos, Nicholas (December 14, 2020). "Can Congress Overturn the Electoral College Results? Probably Not". The New York Times. ISSN 0362-4331. Retrieved December 28, 2020.
  15. ^ "House passes the $1.7tn US spending bill. But what's in it?". BBC News. December 23, 2022. Retrieved December 23, 2022.
  16. ^ "Bill Signed: H.R. 2617". The White House. December 29, 2022. Retrieved December 29, 2022.
  17. ^ Carvajal, Nikki (December 29, 2022). "Biden signs $1.7 trillion government spending bill into law | CNN Politics". CNN. Retrieved December 30, 2022.
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