Meeting and vote of electors § 8. §§3-21, which provides procedures for … 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? “So much will have had to go wrong at so many other stages of the process to get to a point where everything is coming down to conflicting interpreting of the Electoral Count Act,” Michael Morley, a professor at Florida State University College of Law, told me. [11]:670[23]:338, 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. 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. It was enacted in the aftermath of the disputed 1876 presidential election between Rutherford B Hayes and Samuel J Tilden. But a more crucial date is December 14, dictated by an obscure, Byzantine, 1887 law: The Electoral Count Act. Beermann, Jack Michael and Lawson, Gary, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes (March 1, 2021). "[43] For an objection to be considered and voted on, it must be in writing and made by at least one representative and one senator. "[70][71][68][72], 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." Ohio has the same full-GOP control that Florida does, as does Arizona. Republican lawmakers’ attempts to undermine the election results ignore the Electoral Count Act of 1887—which was put in place after the bungled 1876 election of Rutherford B. Hayes v. … 2 This report also references congressional precedent and practice. Section 6 (now 3 U.S.C. [44], 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. [31] The Defendant state attorneys general argued that their claims are incorrect and would disenfranchise voters,[32] while Plaintiffs argued that their mishandling of the election dilutes legal votes with fraudulent votes. The Republican-majority chambers could get to that point this time around, with Governor Ron DeSantis, a Trump acolyte, cheering them on. "[18] 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,"[19] with meetings of electors typically held in each state capital. This [78][79] In an amicus brief, the House of Representatives concurred. [74][75][76][77] The Justice Department, representing Pence in his official capacity, responded with an argument that the issues raised by the suit should be addressed to the House and Senate, not to the Vice President; not doing so, the department said, represented a "walking legal contradiction" as Gohmert was suing the person whose power he sought to further. US legislation for congressional action in certifying election results. Rather, the Supreme Court has stated that the section "creates a 'safe harbor' insofar as congressional consideration of its electoral votes is concerned. Outside of mentions of its safe-harbor provision in the Supreme Court’s Bush v. Gore decision in 2000, the Electoral Count Act of 1887 has been relevant only once: in 1960, at the end of another tight election that included suspicions of vote manipulation. THE 12th amendment and the 1887 Electoral Count Act will both be relevant when Congress meets on January 6 to finalize Joe Biden's victory over Donald Trump. "[10]: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. The two houses withdrew, and debated the objection. “The meeting of the Senate and House of Representatives to be held in January 2009 pursuant to section 15 of title 3, United States Code, to count the electoral votes for President and Vice President cast by the electors in December 2008 shall be held on January 8, 2009 (rather than on the date specified in the first sentence of that section).” Then, it says the House and Senate leaders each designate two tellers. What gives the 49th Congress (of 1887) the authority to bind future Congresses and joint conventions in counting electoral votes? [35] Moreover, all states except Wisconsin had certified their results by the "safe harbor" deadline,[69] which under the Act is "conclusive. [29][30] The attorneys general of Ohio and Arizona filed neutral motions noting that the United States Supreme Court has a duty to rule on the matter however both expressed no further opinion. [24]:20–1, The Republican Senate passed four versions of the act, in 1878, 1882, 1884, and 1886, before its enactment. Democratic election lawyers have been carefully watching the Trump administration’s public arguments, trying to divine whether the GOP is laying the groundwork for this sort of effort. 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? 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. But ahead of what could be one of the most contested presidential elections in … [53], Two tellers must be "previously appointed" by the Senate and two tellers by the House of Representatives. § 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. 373, later codified at Title 3, Chapter 1[1]) is a United States federal law adding to procedures set out in the Constitution of the United States for the counting of electoral votes following a presidential election. "[53], 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. Hoping to avoid a repeat of the legitimacy crisis of 1876 election, Congress passed the Electoral Count Act in 1887. The Electoral College went 306-232 for Biden, but President Trump has alleged that widespread fraud tipped the results in must-win swing states. BIDEN WINS PRESIDENCY, TRUMP DENIED SECOND TERM IN WHITE HOUSE, FOX NEWS PROJECTS Judges issue their rulings, which are appealed—maybe all the way to the Supreme Court. Reaching the nightmare scenario would take an amazing alignment as well as an election so tight that what happens in these states could determine the winner. This has only happened four times. "[23]: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. One key factor that could distinguish this year’s situation from 2000: The litigation that went to the Supreme Court was over a recount, not a count itself. If a state follows these "safe harbor" standards and the state's governor properly submits one set of electoral votes, the Act states that that "final" determination "shall govern. "[5] 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. [53] 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. 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 Electoral Count Act violates the text and structure of the Constitution in multiple ways. § 6) requires the governor of each State to prepare seven original copies of a "certificate of ascertainment", each under the seal of the state, which identifies the electors appointed by the state and the votes they received, as well as the names of all other candidates for elector and the votes they received. [35][67][68] None of these electors was appointed as an elector by any organ of state government, or certified as electors by their state governors. [56] After the debate has lasted two hours, the presiding officer of each House must "put the main question without further debate. For example, where is the font of express or implied power to pass the Electoral Count Act? This post provides a historical background of that act in the presidential election of 1876 and the great compromise of 1877. No one objected. [28], On December 7, 2020, Texas Attorney General Ken Paxton filed a suit in the Supreme Court, Texas v. Pennsylvania, alleging that Georgia, Michigan, Pennsylvania and Wisconsin violated both various federal and state laws by changing their election procedures in the run-up to the election. "[11]:634, As the custodian for papers, the Senate president is required by the Constitution to "open all the certificates,"[20] which the Act further describes as "all the certificates and papers purporting to be certificates. 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. 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.". 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. In cases where multiple returns have been submitted from a state, Section 4 (3 U.S.C. 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,[62]:360 or to disagree about whether a new president has been chosen. NOBODY knows who the votes are cast for. [2] 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. It’s possible for vote-counting to take weeks: New York didn’t certify the primary results from its late June elections until early August, and those races had lower turnout than is expected in the general election. The Electoral Count Act of 1887 was designed to answer that question. [35] The district court dismissed the suit for lack of standing on January 1, 2021;[36] the dismissal was upheld by an appeals court panel the next day.[37]. The ECA was created after the 1876 presidential election, between Rutherford Hayes and Samuel Tilden , which exposed serious flaws with the process of resolving election disputes. Determination of controversy as to appointment of electors § 6. The Electoral Count Act of 1887 (ECA) is a federal law which establishes procedures for the counting of electoral votes by Congress following a presidential election. "[43] 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...."[11]:642–43[73], To be elected by the electoral college, the Constitution requires that a candidate receive "a majority of the whole number of Electors appointed. First, it says that the vice president indeed presides over the proceedings. "[63][62]:357 Maskell's CRS report also added more arguments based on the legislative history of the Electoral Count Act. Old version: "if there shall have been any final determination in a State of a controversy or contest, New version: "if there shall have been any final determination in a State, This page was last edited on 20 February 2021, at 10:34. [11]: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. [10]:635[24]:21, The drafting of the act involved large amounts of passionate debate over many of its provisions. The current law (3 U.S.C. Because the Democrats control the House and Republicans control the Senate, each chamber approves the electors who favor its majority party’s candidate. Apparently we’ve got an asteroid heading our way for the night of November 2, which I hope is not a bad omen.”. “The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes” Posted on March 4, 2021 6:38 am by Rick Hasen [34] According to the National Review, even at the time the bill was enacted, some in Congress doubted whether the Act can bind a future Congress. [11]:664–65[64], 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. This official, scripted show was laid out in the Electoral Count Act of 1887, a law passed after the contested election of 1876. [44], Section 4 of the Electoral Count Act (now 3 U.S.C. Among those expected to submit objections are Rep. John Joyce, R-Altoona. Attorneys general from 18 states, members of defendant state legislatures, and other various parties filed in support of Texas, six of those states filed to join the lawsuit. 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. [43] 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. It must be signed by at least one Senator and one member of the House of Representatives before the objection can be received. The current process was circumscribed in the Electoral Count Act of 1887. Two competing sets of electors were sent to Congress. 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. § 6 differs substantively from the original clause in Section 3 of the 1887 law, as shown below: Under the original version, the clause appears to apply only in situations where the final determination satisfies the Section 2 "safe harbor." [11]:653 The Senate president does not announce "the names of persons elected," since Congress specifically rejected that option as explained above. The 1887 Electoral Count Act seems like an obscure piece of political trivia. [11]:614–15, The first time an objection occurred was in 1969, in response to a faithless elector from North Carolina that voted for George Wallace instead of Richard Nixon. The New York primary meltdown was in part a function of a dysfunctional state system that had spent little time preparing for the new realities of 2020 voting. But the expected massive delays in vote counting—because of late-arriving absentee ballots, because of disputes over which of those ballots are valid, because of overwhelmed state election systems, because of recounts, or because of X factors such as direct election interference by foreign or domestic attackers—could mean the country blows past that date without clear results in every state. Â, Read: The terrifying inadequacy of American election law, By the simplest reading of the act, whoever is ahead on December 14 gets the electors and, with them, the presidency. § 16) specifies the seating arrangements in the House chamber. In 1887, Congress passed the Electoral Count Act, now codified in Title 3, Chapter 1 of the United States Code, establishing specific procedures for the counting of the electoral votes. If Pennsylvania’s electoral votes can’t be counted, does that mean that being picked as president requires the same 270 electoral votes as normal, or merely 260 (a majority of the total without Pennsylvania)? That year, a Democratic senator and Democratic House member each challenged the results from Ohio. [14][66], In 2020, several Republican groups, including some groups of electors slated by the Republican Party and defeated in popular voting, cited the Hawaii precedent and held events naming alternative electors who will be voting for Donald Trump. [62]: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. The earlier versions all failed in the House of Representatives which was mainly controlled by Democrats, who had a greater sensitivity toward states' rights.

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