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| Long title | An 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. |
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| Enacted by | the 49th United States Congress |
| Effective | February 3, 1887 |
| Citations | |
| Public law | Pub. L. 49–90 |
| Statutes at Large | 24 Stat. 373 through 24 Stat. 375 (3 pages) |
| Legislative history | |
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| Major amendments | |
| Electoral Count Reform and Presidential Transition Improvement Act of 2022 | |
| United States Supreme Court cases | |
| Bush v. Gore | |
| This article is part of a series on the |
| Politics of the United States |
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The Electoral Count Act of 1887 (ECA) (Pub. L. 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.[citation needed] The Act relegated Congress to rejecting electoral votes in only a narrow class of disputes: when a state presented more than one set of electors, when "the electors' votes were not 'regularly given'", or when "the governor had not 'lawfully certified' the electors' appointment".[8]: 615–616 Congress could reject votes under the Act for specific defects: "if a state submits multiple sets of electoral votes", if there were "electors who were constitutionally ineligible to hold the elector’s office, who balloted corruptly, or who balloted in a way that violated post-appointment constitutional or statutory requirements", if "the electors’ gubernatorial certification resulted from ministerial error", or if "the electors’ election was itself so irregular as to be fraudulent or violate constitutional norms".[8]: 652
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The central provisions of the law were never seriously tested in a disputed election.[citation needed] Since the bill was enacted, some have doubted whether the Act could bind a future Congress.[8]: 560–566 [9][10] 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.[8]: 550, 560 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."[8]: 541, 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]: 551–553 [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/her party's defeat, and his/her own on some of those occasions. Richard Nixon, Walter Mondale, Dan Quayle, Al Gore, Dick Cheney, Joe Biden, Mike Pence, and Kamala Harris all notably presided over counts that handed themselves, or their party, a loss.[12][13]
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.[14] The bill was signed into law by President Joe Biden on December 29.[15][16] 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.[8]: [page needed]
- ^ "49 Congressional Record, Vol. -1805, Page 1887 (373)" (PDF). Archived (PDF) from the original on May 1, 2021. Retrieved January 24, 2022.
- ^ "Positive Law Codification". uscode.house.gov. Office of the Law Revision Counsel. Archived from the original on April 21, 2021. Retrieved January 2, 2021.
- ^ Koger, Gregory (January 4, 2021). "The Origins of the 1887 Election Count Act". Mischiefs of Faction. Archived from the original on January 4, 2021. Retrieved January 4, 2021.
- ^ 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.
- ^ Cite error: The named reference
:0was invoked but never defined (see the help page). - ^ Cite error: The named reference
3usc5was invoked but never defined (see the help page). - ^ 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.
- ^ a b c d e f g Siegel, Stephen A. (July 2004). "The Conscientious Congressman's Guide to the Electoral Count Act of 1887". Florida Law Review. 56 (3) 2. University of Florida Levin College of Law: 541–671. ISSN 1045-4241. SSRN 1265227. UF Law Scholarship Repository flr/vol56/iss3/2 => 1854. Florida Law Review: was Siegel-BOOK, now 80375 (metadata, PDF). ResearchGate:228156466. bepress SelectedWorks stephen-siegel/31.
- ^ a b Cite error: The named reference
Kesavanwas invoked but never defined (see the help page). - ^ Cite error: The named reference
nationalreviewwas invoked but never defined (see the help page). - ^ 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.
- ^ Jalonick | AP, Mary Clare. "EXPLAINER: How Congress will count Electoral College votes". The Washington Post. ISSN 0190-8286. Retrieved December 28, 2020. [dead link]
- ^ Fandos, Nicholas (December 14, 2020). "Can Congress Overturn the Electoral College Results? Probably Not". The New York Times. ISSN 0362-4331. Archived from the original on December 28, 2020. Retrieved December 28, 2020.
- ^ "House passes the $1.7tn US spending bill. But what's in it?". BBC News. December 23, 2022. Retrieved December 23, 2022.
- ^ "Bill Signed: H.R. 2617". The White House. December 29, 2022. Archived from the original on January 15, 2023. Retrieved December 29, 2022.
- ^ Carvajal, Nikki (December 29, 2022). "Biden signs $1.7 trillion government spending bill into law | CNN Politics". CNN. Archived from the original on December 31, 2022. Retrieved December 30, 2022.