The Electoral Count Act and Presidential Elections

The Electoral Count Act and Presidential Elections

INSIGHTi

The Electoral Count Act and Presidential
Elections
December 19, 2022
Every four years in November, citizens vote for presidential and vice presidential electors—known
collectively as the electoral college—who meet in their respective states in December to vote for the U.S.
President and Vice President. On the following January 6, a joint session of Congress convenes to count
and announce the electors’ votes. (For more information, see CRS Report RL32611, The Electoral
College: How It Works in Contemporary Presidential Elections, by Thomas H. Neale.) The U.S.
Constitution, the Electoral Count Act of 1887 (ECA), codified at 3 U.S.C. §§ 5-6, 15-18, and other federal
statutes set forth key procedures for this process. This Insight discusses the presidential election process
established in the ECA and in related constitutional and federal statutory provisions and recent
congressional action.
Process Prior to Convening Joint Session of Congress to
Count Electoral Votes
Election Day: Appointment of Electors
The Electors Clause of the Constitution (Article II, Section 1, clause 2) provides that “[e]ach state shall
appoint” presidential and vice presidential electors in the manner “as the Legislature thereof may direct.”
Article II, Section 1, clause 4, further provides Congress with power to determine when the states choose
their electors or “the Day on which they shall give their Votes; which Day shall be the same throughout
the United States.” Accordingly, Congress enacted a federal statute establishing Election Day for
presidential and vice presidential electors as the first Tuesday after the first Monday in November every
four years. Federal law further provides that whenever a state holds an election for presidential electors
“and has failed to make a choice on the day prescribed by law,” electors can be appointed on a later date
“in such a manner as the legislature of such State may direct.”
Congressional Research Service
https://crsreports.congress.gov
IN12065
CRS INSIGHT
Prepared for Members and
Committees of Congress

Congressional Research Service
2
Certificate of Ascertainment of Appointed Electors Sent to Archivist
The ECA requires that “the executive of each State” send to the Archivist of the United States (Archivist),
by registered mail and under state seal, “a certificate of such ascertainment of the electors appointed,”
including the name of, and number of votes cast for, each elector. Further, the ECA commands that such
certificates of ascertainment be sent “as soon as practicable” after the “final ascertainment” of the
appointment of the electors or “as soon as practicable” after the “final determination of any [election]
controversy or contest” that was resolved under the state’s statutory procedure for election contests.
Duplicate Certificates of Ascertainment Sent to Electors and to Congress
On or before the electors meet to cast their votes, the ECA directs “the executive of each State” to deliver
to the electors of the state, under state seal, “six duplicate-originals of the same certificate” of
ascertainment that were sent to the Archivist. At the first meeting of Congress following the appointment
of the presidential electors, the ECA requires the Archivist to transmit “copies in full of each and every”
certificate of ascertainment to the two houses of Congress.
States’ Determination of Election Contests: “Safe Harbor” Provision
The ECA specifies that if a state, under laws enacted before Election Day and “by judicial or other
methods,” has made a “final determination of any controversy or contest” regarding the appointment of
electors in the state, and if that determination is made at least six days prior to the day that the electors are
to meet to cast their votes, such determination “shall be conclusive, and shall govern in the counting of
the electoral votes.” Known as the “safe harbor” provision, this clause seeks to “assure finality of the
State’s determination” in resolving a presidential election contest (Bush v. Gore, 531 U.S. 98, 113 (2000)
(Rehnquist, C.J., concurring).
Electors Meet to Cast Their Votes
The Twelfth Amendment requires the electors to meet to cast their votes “by ballot” for President and
Vice President “in their respective states.” Federal law specifies that the electors meet and cast their votes
“on the first Monday after the second Wednesday in December” following election day at a location “in
each State as the legislature of such State shall direct.”
Certificates of Votes Sent to President of Senate, Secretary of State,
Archivist, and Federal Judge
After the electors meet to cast their votes, the Twelfth Amendment requires the electors to create “lists”
containing the number of votes cast by the electors for each presidential and vice presidential candidate,
“sign and certify” the lists, and send to the President of the Senate (the Vice President of the United
States). Accordingly, federal law specifies that after the electors vote, they “make and sign six
certificates” of their votes, which contain two separate lists of the votes cast for President and Vice
President. It further provides that the electors attach a certificate of ascertainment to each certificate of the
vote; seal and certify them; and send one set to the President of the Senate, two sets to the state’s
secretary of state, two sets to the Archivist, and one set to the federal judge in the district where the
electors voted.

Congressional Research Service
3
Procedures for Joint Session of Congress to Count
Electoral Votes
Date of Joint Session to Count Electoral Votes
The ECA requires Congress to count the electoral votes on January 6 at 1:00 p.m. following each
presidential election unless the date is changed by law.
Opening and Reading of Electoral Votes
The Twelfth Amendment instructs that “[t]he 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.” The ECA
provides that the electoral votes be counted at a joint session of the Senate and the House of
Representatives, meeting in the House chamber, with the President of the Senate serving as the presiding
officer. The ECA further specifies that the President of the Senate open and present the certificates of the
electoral votes in alphabetical order.
Counting Electoral Votes and Announcing Result
The ECA requires the appointment of “tellers” who read, record, and count the votes of each state and the
District of Columbia. The law directs the President of the Senate to announce whether any candidates
have received the required majority, “which announcement shall be deemed a sufficient declaration of the
persons, if any, elected President and Vice President.”
Majority of Electoral Votes Required for Election
The Twelfth Amendment requires the winning candidate to receive “a majority of the whole number of
Electors appointed” and anticipates that, if no candidate receives a majority of the electoral votes, the
House of Representatives shall elect the President and the Senate shall elect the Vice President in a
contingent election. For additional discussion, see CRS Report R40504, Contingent Election of the
President and Vice President by Congress: Perspectives and Contemporary Analysis, by Thomas H.
Neale.
Objections to Counting One or More Electoral Votes
The ECA provides that as the tellers read each certificate, the President of the Senate shall call for any
objections. It specifies that each objection be made in writing, stating “clearly and concisely, and without
argument, the ground thereof,” and be signed by at least one Senator and one Member of the House.
When such an objection is received, the ECA directs that “the Senate shall thereupon withdraw” from the
House chamber, the two houses debate the question in their respective chambers for a maximum of two
hours, and each body vote separately to accept or reject the objection. The ECA specifies that both houses
of Congress must agree to an objection for a state’s electoral vote to be excluded from the vote count,
providing that “the two Houses concurrently may reject the vote or votes when they agree that such vote
or votes have not been so regularly given by electors.” Following the votes, the ECA instructs that the
joint session “immediately again meet, and the presiding officer shall then announce the decision of the
questions submitted.” In addition, the ECA sets forth a process to address the receipt of multiple
certificates from the same state.

Congressional Research Service
4
For additional discussion, see CRS Report RL32717, Counting Electoral Votes: An Overview of
Procedures at the Joint Session, Including Objections by Members of Congress, coordinated by Elizabeth
Rybicki and L. Paige Whitaker.
Recent Congressional Action
During the 117th Congress, the process described above has been the subject of committee examinations
as well as legislation. Actions taken in the 117th Congress, with links to electronic resources providing
more information concerning those actions, are described below in chronological order.
In January 2022, the Committee on House Administration released a staff report prepared for the chair
with a detailed explanation of the ECA and a discussion of proposals for reform. The House Select
Committee to Investigate the January 6th Attack on the Capitol has held multiple hearings concerning the
events that occurred during the 2021 joint session to count the electoral votes, including six in June 2022.
On July 20, 2022, a bipartisan group of Senators announced that they had reached agreement on
legislation to reform the ECA (S. 4573). They shared a summary of the proposal and spoke about it on the
Senate floor (see the Congressional Record, July 20 and July 21). On August 3, 2022, the Senate Rules
and Administration Committee held a hearing, “The Electoral Count Act: The Need for Reform,” in
which sponsors of the measure and legal scholars testified about the proposed legislation. Companion
measures, identical to the Senate-introduced bill, were introduced in the House on September 14, 2022
(H.R. 8824), and September 15, 2022 (H.R. 8846).
On September 19, 2022, the chair of the House Administration Committee introduced a bill, H.R. 8873,
that addressed the subject in a different way. The bill was referred to the House Administration
Committee, and a one-page summary of the bill has been posted on the committee’s website. On
September 20, the House Rules Committee held a hearing concerning procedures for bringing the
legislation before the full House, receiving testimony from Members both in favor of and against the
legislation. The House debated and approved the procedures for considering the bill and then debated and
passed the bill on September 21, 2022. The vote on final passage of the bill was 229-203.
On September 27, 2022, the Senate Committee on Rules and Administration held a markup of S. 4573.
After debating and voting on several amendments, the committee voted, 14-1, to advance the bill with a
full-text substitute amendment. (See the CQ markup report; link requires a paid subscription.) The bill
was reported with the amendment on October 18, 2022. A written committee report has not been filed.
The full Senate has not taken up S. 4573. Senate sponsors have indicated that they are pursuing inclusion
of the text in appropriations legislation expected to be considered before the end of the 117th Congress.
(See news coverage in Roll Call and remarks of the Senate majority leader on the floor December 13,
2022.)

Author Information

L. Paige Whitaker
Elizabeth Rybicki
Legislative Attorney
Specialist on Congress and the Legislative Process

Congressional Research Service
5
Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

IN12065 · VERSION 1 · NEW