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I've been a bit (well, very) confused regarding the proposed Electoral Count Reform Act.

Purportedly, it apparently attempts to (among other things) do the following:

  1. Dictate which state official(s) can certify electors and prevent states from appointing alternate electors

  2. Require formal challenges of electoral votes to "one-fifth of both the House and Senate"

  3. Clarify that the Vice President has "no power to solely" accept/reject electors

However, I don't understand how any of these would be effective, because:

  1. Doesn't section II of the US Constitution say "each State shall appoint, in such manner as the legislature thereof may direct, a number of Electors", and "the Congress may determine the time of chusing the Electors, and the day on which they shall give their votes"?
    How does this leave any room for Congress to tell states the manner in which electors are certified? Isn't the Constitution pretty clearly saying the state legislatures get to decide such things?

  2. I don't understand how Congress could pass a statute to bind a future Congress, or what this would mean even if it could. After all, isn't it up to Congress (as a whole) to tally the votes? And doesn't each Congress get to make its own rules? What weight would a prior statute carry in this regard, and how would that be different from a rule change?

  3. Similarly to the last point, the only thing I see the Constitution saying about the VP's role in electoral counting is "the president of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates". OK, so the only power the VP has here is "opening" the certificates; the Constitution leaves the rest up to Congress (as a whole). So, again, doesn't this mean that the mechanics of the counting process is left to however Congress decides to do it—according to whatever rules (or lack thereof) it wishes to proceed with at that time? How can today's Congress bind a future Congress with a statute in any way?

  4. Also related to the previous point, the Constitution also says "the person having the greatest number of votes shall be the president". Isn't this clause pretty... crystal clear? I mean, even if Congress doesn't pass ECRA, and even if 100% of future Congress decides to make someone else president, they still wouldn't have any power to do such a thing without amending the Constitution first, right? What part of this leaves any room for doubt about who becomes president, let alone whether the VP would have any say in the matter, to warrant the ECRA?

Basically, why aren't the above provisions of the ECRA either obviously unconstitutional or moot?

2 Answers 2

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Q: How does this leave any room for Congress to tell states the manner in which electors are certified?
Q: Isn't the Constitution pretty clearly saying the state legislatures get to decide such things?

The state legislatures do not certify electors. Only the vote is certified and only by the electors appointed under state law.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall 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; ... [Twelfth Amendment Election of President] (emboldening added)

To that end, the proposed ECRA (Summary), merely reflects those requirements. With respect to the transmission of the sealed certificates, the state still retains authority for selecting the individual responsible for doing so; but requires only that the selection cannot be changed after the election.

The bill specifies that the choice of electors must occur in accordance with the laws of the state enacted prior to election day.

Additionally, the bill identifies each state's governor (unless otherwise identified in the laws or constitution of a state in effect on election day) as responsible for submitting the certificate of ascertainment identifying the state's electors.


Q: After all, isn't it up to Congress (as a whole) to tally the votes?
Q: And doesn't each Congress get to make its own rules?
Q: What weight would a prior statute carry in this regard, and how would that be different from a rule change?

Each House may determine the Rules of its Proceedings, ... [Article I, Section 5, Clause 2]

The Constitution’s Rulemaking Clause authorizes the House of Representatives and Senate to establish rules by which each will conduct its own business.

When Congress meets for the purpose of selecting the president and vice-president, it is not "conduct[ing] its own business" — it is conducting the nation's business. This can only be accomplished under the Constitution or a suitable law and only under a Concurrent Resolution authorizing the two houses to work together. (See, for example, S.Con.Res.1 - A concurrent resolution to provide for the counting on January 6, 2021, of the electoral votes for President and Vice President of the United States.)


Q: [D]oesn't this mean that the mechanics of the counting process is left to however Congress decides to do it—according to whatever rules (or lack thereof) it wishes to proceed with at that time?
Q: How can today's Congress bind a future Congress with a statute in any way?

See above, with respect to the nation's business.


Q: [T]he Constitution also says "the person having the greatest number of votes shall be the president". Isn't this clause pretty... crystal clear?
Q: What part of this leaves any room for doubt about who becomes president, let alone whether the VP would have any say in the matter, to warrant the ECRA?

The more complete text allows for the possibility that no person has a majority for selection as president.

... The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. ... [Twelfth Amendment Election of President]

In the case where no person has a majority, the House selects the person who shall be president.


Legal weight of the Electoral Count Reform Act (ECRA)

The general authority for Congress to make law is given in Article I, Section 8, Clause 18.

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Because the Twelfth Amendment delegates to the House and Senate the power to choose, under some circumstances, the president and vice-president, respectively; it follows that, should Congress find it necessary and proper, a law may be written to address any problems that may arise during or after a presidential election.

The Twelfth Amendment, as written, anticipates that only one list of votes will be submitted by each state for each office. However, after the Civil War, there were, from some states, two or more lists of votes claiming to be valid. This (and other reasons) led Congress to write the Electoral Count Act of 1887 (ECA). It was necessary and proper because the Twelfth Amendment didn't anticipate those problems.

During the 2020 Presidential elections, additional problems arose which suggested problems with the ECA. Some members of Congress agreed that changes were necessary and proper so legislation was introduced, the ECRA, to resolve those problems.

If the proposed changes prevent the problems from arising again, then future presidential elections will occur as the Twelfth Amendment anticipated.

Furthermore, the proposed legislation (S.4573) includes the Presidential Transition Improvement Act, as necessary and proper, to address problems that arose during the transition period after the 2020 Presidential Election.

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  • +1, but the last part seems unrelated to my question. I was asking what power Congress (or VP or anyone else) could possibly in the case where someone actually does have the majority of the votes—that's the case that ECRA is trying to address. The question wasn't about the case where no one has the majority.
    – user541686
    Commented Oct 2, 2022 at 17:30
  • @user541686 - I was explaining that it not "the greatest number of votes"; but rather, a majority as shown in the expanded quote from the 12th Amendment. It is clear that when there are only two people with electoral college votes, then "greatest number of votes" is a majority.
    – Rick Smith
    Commented Oct 2, 2022 at 20:50
  • Sure, I get that you're correcting my question. I'm saying the specifics of the selection criterion (whether it's majority or plurality or anything else) doesn't seem relevant to the question I was asking about it. I was asking, in the case where {that criterion} is satisfied (as it was in the previous election, and yet which motivated ECRA), how can anyone come to the conclusion that the VP or Congress or anyone else might have any power to select someone else as president?
    – user541686
    Commented Oct 3, 2022 at 2:29
  • @user541686 - As I understand it, you are interested in the flaws of the Election Count Act of 1887 that made the ECRA necessary. I will edit my answer tomorrow.
    – Rick Smith
    Commented Oct 3, 2022 at 3:17
  • I'm not sure about that - I think I'm confused at how this could be something Congress could legislate in the first place, whether in 1887 or 2022. It seems to me that the constitution unambiguously says that someone who receives the majority of the votes shall be president... end of story. It doesn't (for example) say "if the Congress/VP/etc. agrees that a candidate has received the majority of the votes then that person becomes president", or something like that, to leave any wiggle room for anyone's interpretation or legislation of the matter.
    – user541686
    Commented Oct 3, 2022 at 6:01
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I'll take a different tack from Rick Smith (who gave an excellent answer) and come at this from a different direction

Dictate which state official(s) can certify electors and prevent states from appointing alternate electors

If you're not aware, some states had Legislators who attempted to submit alternate election results

Their plan was to submit papers to Congress suggesting Trump won the states, even though certified results showed then-President-elect Joe Biden had won them. Trump's allies hoped the dual slates of electors would serve as a justification for slowing or reversing the Jan. 6, 2021, certification of Biden's victory.

“We would just be sending in ‘fake’ electoral votes to Pence so that ‘someone’ in Congress can make an objection when they start counting votes, and start arguing that the ‘fake’ votes should be counted,” wrote Jack Wilenchik, a Phoenix lawyer who helped convene the Trump electors for Arizona.

The goal here is to specify, in law, that only the Governor (or another specified state representative) for each state can submit results and electors. This way, you don't have populist movements trying to throw the Congressional count into confusion.

Require formal challenges of electoral votes to "one-fifth of both the House and Senate"

Right now, you only need two people to challenge the results of a state's elections. That first happened in 2005

Alleging widespread "irregularities" on Election Day, a group of Democrats in Congress objected Thursday to the counting of Ohio's 20 electoral votes, delaying the official certification of the 2004 presidential election results.

Jan 6, 2021 saw even more support for delaying the electoral count. With such a low bar to clear, it's obvious now that it doesn't take much for a small group to de-rail the counting process.

Clarify that the Vice President has "no power to solely" accept/reject electors

This simply means that, explicitly, the Vice President cannot reject electors as President Trump claimed

“The Vice President has the power to reject fraudulently chosen electors,” Trump tweeted Tuesday.

Binding future Congresses

I think you're misunderstanding how this works. The current Congress cannot bind any future Congress to (or not do) do anything. The best any Congress could do in that vein is pass a Constitutional amendment and hope the states ratify it. As far as laws go, a future Congress can amend or repeal laws as it sees fit (pending a Presidential authorization or Congressional veto override). In this case, this law amends the Electoral Count Act of 1887, enacted by the 49th Congress. It would be silly to claim that the 117th Congress (2021-2023) cannot take such action. What would the point of elections be?

Assuming this becomes law (which seems possible), any future Congress could amend or repeal it. You just need enough political support to do so. Remember, passing laws through Congress is not an easy thing or every proposed law would be enacted.

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