The Electoral Count Act: Constitutional Or Not?

The Electoral Count Act of 1887 is a federal law in the United States that outlines the procedures for counting electoral votes following a presidential election. The Act was enacted by Congress to prevent disputes and deadlocks in the electoral process, as seen in the 1876, 1880, and 1884 elections. However, the constitutionality of the Act has been questioned, with critics arguing that it violates the text and structure of the Constitution. The debate centres around the balance of power between federal and state authorities in the counting of electoral votes and the validity of Congress's role in resolving disputes. While some argue that the Act is unconstitutional, others suggest that a careful examination of state interpretation traditions is needed to determine its constitutionality fully. The Act has been amended over time to address vulnerabilities and ensure the integrity of the electoral process.

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The Act's constitutionality is questioned due to the power it grants Congress

The Electoral Count Act of 1887 (ECA) is a federal law in the United States that outlines the process for counting electoral votes following a presidential election. The Act was enacted to prevent issues arising from close elections, such as the 1876, 1880, and 1884 elections, where there was no formally established counting procedure, and partisans in Congress may have used the counting process to force a desired result.

The constitutionality of the Electoral Count Act has been questioned, specifically regarding the power it grants Congress in the electoral process. The Twelfth Amendment requires the President of the Senate (usually the Vice President) to open and count the certificates provided by state presidential electors. The Constitution does not allow for any role by Congress in this process, and thus, the provisions of the Electoral Count Act that grant Congress the power to reject a state's electoral votes by concurrent resolution are seen as unconstitutional.

The Act allows Congress to reject electoral votes in specific cases, such as when a state presents multiple sets of electors, when electors' votes were not "regularly given," or when the governor has not "lawfully certified" the electors' appointment. However, some argue that the Act does not provide a clear explanation of these grounds for objection. The vague provisions of the Act have been criticised as they could be exploited to influence election results.

Furthermore, the Electoral Count Act's applicability to future Congresses has been questioned. Since the Constitution empowers Congress to set its procedural rules, it is possible that the House and Senate could set new rules for the joint session convened to count electoral votes, potentially overriding the Act's provisions.

In conclusion, the Electoral Count Act of 1887 has faced scrutiny due to the power it grants Congress in the electoral process, with critics arguing that it violates the Constitution by allowing Congress to reject state electoral votes. The Act's vague provisions, lack of clarity on the extent of Congress's powers, and potential for misinterpretation have all contributed to questions about its constitutionality.

The Act's vague provisions make it vulnerable to exploitation

The Electoral Count Act (ECA) of 1887 is a federal law in the United States that outlines the procedures for counting electoral votes following a presidential election. The Act was enacted to prevent disputes and deadlocks in the event of a close election, as had occurred in 1876, 1880, and 1884. However, the Act has been criticised for its vague and confusing provisions, which have raised questions about its constitutionality.

One of the main issues with the ECA is the ambiguity surrounding the role of Congress in counting electoral votes. While the Act grants Congress the power to reject a state's electoral votes under certain circumstances, the Constitution does not explicitly give Congress any role in this process. This discrepancy has led to debates about the constitutionality of the ECA, with some arguing that it violates the text and structure of the Constitution.

The ECA permits members of Congress to object to votes on two grounds: if a vote was not "regularly given" or if an elector was not "lawfully certified." However, the Act provides no clear explanation of what these grounds entail, leaving them open to interpretation. This vagueness could potentially allow for the exploitation of the Act, as it provides opportunities for partisans in Congress to use the counting process to force a desired result.

Additionally, the ECA's provisions regarding the duties of the vice president as President of the Senate during the joint session of Congress are also unclear. While the law assigns the vice president to preside over the session, it does not specify the extent of their duties, leading to confusion and potential misinterpretation. This lack of clarity further contributes to the Act's vulnerability to exploitation.

The vague and confusing nature of the ECA has been recognised, with modern commentators noting that the law "invites misinterpretation" and that its provisions seem "contradictory." These issues highlight the need for reforms to address the Act's vulnerabilities and ensure the integrity of the electoral process.

The Act's procedures for appointing electors

The Electoral Count Act of 1887 (ECA) is a United States federal law that outlines the process for appointing electors for the president and vice president, as well as certifying and transmitting electoral votes to Congress. The Act was enacted by Congress in 1887, ten years after the disputed 1876 presidential election, where several states submitted competing slates of electors, and Congress was unable to resolve the deadlock.

The Act specifies that electors shall be appointed in each state on Election Day, which has been the first Tuesday following the first Monday in November since 1845. The 12th Amendment requires electors to meet after the election in their respective states to cast their votes, which are then transmitted to Congress. The Electoral Count Act requires electors to meet in their home states and cast their votes on the first Monday after the second Wednesday in December following the election.

Electors' appointments must be ratified through a "certificate of ascertainment" issued by the state's executive, typically the governor or secretary of state, depending on state law. This official also transmits the state's votes to the archivist of the United States, who then forwards them to Congress. The Act provides that Congress can reject votes in specific instances, such as when a state presents multiple sets of electors, when electors' votes were not "regularly given," or when the governor has not "lawfully certified" the electors' appointment.

The Act also allows members of Congress to object to votes on two grounds: if a vote was not "regularly given" or if an elector was not "lawfully certified." However, it provides little detail about the extent of the vice president's duties in presiding over the joint session. The Act has faced criticism for its vague provisions, which some argue could be exploited to influence election results.

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The Act's certification and transmission of votes to Congress

The Electoral Count Act of 1887 was enacted by Congress ten years after the disputed 1876 presidential election, where several states submitted competing slates of electors, and a divided Congress could not resolve the deadlock. The Act aimed to minimise congressional involvement in election disputes and placed the primary responsibility for resolving disputes on the states.

The Act governs the process for appointing electors for president, certifying and transmitting electoral votes to Congress, opening and counting the votes, and resolving disputes. The 12th Amendment requires electors to meet after the election in their respective states to cast their votes, which are then transmitted to Congress to be opened by the vice president in a joint session.

Electors' appointments must be ratified through a "certificate of ascertainment" issued by the state's "executive" (usually the governor or secretary of state) who transmits the state's votes to the archivist of the United States, who then transmits them to Congress. The Electoral Count Act requires electors to meet in their home states and cast their votes on the first Monday after the second Wednesday in December following the election.

The Act permits members of Congress to object to votes on two grounds: if a vote was not "regularly given" or if an elector was not "lawfully certified". An objection requires support from only one senator and one representative to be considered. If a state certifies a single slate of electors and both chambers vote to sustain objections to all or part of the slate, the relevant votes are not counted, increasing the chance of no ticket receiving a majority, and the presidential election being decided by the House.

The Act's validity in the modern context

The Electoral Count Act of 1887 (ECA) is a federal law in the United States that outlines the procedures for counting electoral votes following a presidential election. The Act was enacted to prevent disputes and deadlocks in close elections, such as those experienced in 1876, 1880, and 1884. While the ECA has been amended over time, questions have been raised about its validity and constitutionality in the modern context.

One of the main arguments against the ECA's validity is that it violates the text and structure of the Constitution. For example, the Act gives Congress the power to regulate the manner of presidential elections, which is not explicitly granted by the Constitution. The ECA also allows Congress to bind future Congresses and joint conventions in counting electoral votes, which raises concerns about the overreach of power. Additionally, the Act gives the joint convention the authority to judge the validity of electoral votes, which some argue should be a purely arithmetic and ministerial function.

Furthermore, the ECA has been criticised for its vague and confusing provisions, which can lead to misinterpretation and exploitation. The law's procedures were notably exploited by President Trump and his supporters in 2021, who attempted to disrupt the peaceful transfer of power, resulting in the violent attack on the Capitol. This incident highlighted the vulnerabilities of the ECA and the need for clearer and more robust legislation.

However, supporters of the ECA argue that it provides necessary structure and guidelines for the electoral process. The Act ensures that electors are appointed in each state on Election Day and that their votes are certified, transmitted, and counted accurately. It also establishes a process for resolving disputes and objections to electoral votes.

In conclusion, the validity of the Electoral Count Act of 1887 in the modern context is a highly debated topic. While it provides a framework for the electoral process, concerns about its constitutionality and potential vulnerabilities have been raised. To address these issues, Congress has been urged to work on a bipartisan basis to amend and improve the Act, ensuring the integrity and security of future presidential elections.

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