[Congressional Record Volume 168, Number 199 (Wednesday, December 21, 2022)]
[Senate]
[Pages S9765-S9767]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ELECTORAL COUNT REFORM AND PRESIDENTIAL TRANSITION IMPROVEMENT ACT
Ms. COLLINS. Madam President, the Consolidated Appropriations Act of
Fiscal Year 2023 includes the reforms of the Electoral Count Reform and
Presidential Transition Improvement Act, a bill I coauthored with
Senator Joe Manchin of West Virginia. This bipartisan legislation has
39 cosponsors, including Senate Leaders Chuck Schumer and Mitch
McConnell and Senate Rules Committee Chairman Amy Klobuchar and Ranking
Member Roy Blunt. The bill was favorably reported out of the Senate
Rules Committee by a vote of 14-1.
The Electoral Count Reform and Presidential Transition Improvement
Act would reform and modernize the outdated Electoral Count Act of 1887
to ensure that electoral votes tallied by Congress accurately reflect
each State's vote for President. In addition to my prior remarks about
the reforms this bill makes to the Electoral Count Act, it is important
that the Congressional Record reflect the purposes and intended
implementation of these reforms, which were made by a bipartisan
working group of Senators led by me and Senator Manchin. Our
legislation amends title 3, United States Code, to reform the Electoral
Count Act of 1887, and amends the Presidential Transition Act of 1963.
Title I of the bill, described in the following analysis, contains the
Electoral Count Reform Act.
Sec. 101. Short Title. This section designates the name of the bill
as the ``Electoral Count Reform Act of 2022.''
Sec. 102. Time for Appointing Electors. This section streamlines
section 1 of title 3, United States Code, requiring that the electors
of President and Vice President be appointed in each State on election
day, in accordance with the laws of the State enacted prior to that
date. The phrase ``in accordance with the laws of the State enacted
prior to election day'' forecloses any opportunity that a subsequent
day could be selected for choosing a State's electors or taking other
post hoc actions.
This section also repeals section 2 of title 3, often referred to as
the ``failed election'' provision, which states that ``[w]henever any
State has held an election for the purpose of choosing electors, and
has failed to make a choice on the day prescribed by law, the electors
may be appointed on a subsequent day in such a manner as the
legislature of such State may direct.'' The phrase ``failed to make a
choice'' is not defined in law. Since its enactment in 1845, this
provision has never been used, and it was a source of uncertainty
during the Presidential elections of 2000 and 2020. In striking this
provision, our legislation ensures that Congress does not authorize any
State to declare an election ``failed'' when the outcome is
undesirable.
The authors of this bill recognize that there may be exceedingly rare
circumstances in which a State may truly be unable to conduct its
election on the day designated by law. Such rare circumstances are
understood to include catastrophic natural disasters, terrorist
attacks, or similar calamities. The definition of election day in the
new legislation allows a State to modify the period of voting in a
popular election ``as necessitated by force majeure events that are
extraordinary and catastrophic, as provided under laws of the State
enacted prior to such day.'' Such circumstances are so rare that they
have yet to arise in our Nation's history, thus this provision was
included with the understanding that such an event requiring its use
would be unprecedented in nature.
This provision contains several Federal restrictions: No. 1, the
events must be necessitated by force majeure events that are
extraordinary and catastrophic, No. 2, the processes for modifying the
period of election must be established by the State prior to election
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day, No. 3, and the remedy is limited to modifying the period of the
election, not delaying or cancelling an election. This provision
constrains the discretion of States while also providing flexibility to
respond to extraordinary and catastrophic election emergencies. This
provision does not permit the legislative appointment of new electors
after election day.
Sec. 103. Clarification with Respect to Vacancies in Electoral
College. This section clarifies that States may only fill elector
vacancies pursuant to laws enacted prior to election day.
Sec. 104. Certificate of Ascertainment of Appointment of Electors.
This section updates existing provisions to ensure that Congress can
identify a single, conclusive slate of electors submitted by each State
in a timely manner.
This section reforms and modernizes sections of the Electoral Count
Act to ensure Congress receives timely and accurate certificates of
ascertainment for each State. It requires each state's executive to
issue a certificate of ascertainment of appointment of electors no
later than 6 days before the meeting of electors and to transmit the
certificate to the Archivist of the United States and several
duplicate-original certificates to the State's appointed electors. Each
State's executive must issue a certificate of ascertainment pursuant to
the laws of such State. This section maintains that existing duty in
the underlying law and reiterates that State executives must issue
these certificates pursuant to State law in effect prior to election
day.
The reason for this amendment is because the underlying law, section
5 of title 3, establishes a presumption of conclusiveness of a State's
appointment of electors if the State meets what has been called the
``safe harbor'' deadline, which is 6 days before the meeting of the
electors. This safe harbor provision has never been used by Congress to
accomplish its duties under the 12th Amendment. It is an outdated and
impracticable provision intended to help resolve a remote scenario in
which multiple slates of electors are received from a State.
The Electoral Count Reform and Presidential Transition Act defines
``executive'' of a State to mean ``the Governor of the State . . .
except when the laws or constitution of a State in effect as of
election day expressly require a different State executive to perform
the duties identified'' under the Electoral Count Act. This provision
is intended to resolve any ambiguity in the meaning of ``executive''
under current law and to ensure that Congress can identify a single
State official with the responsibility for identifying his or her
State's electors to Congress. In the absence of unequivocal statutory
or constitutional provisions assigning these responsibilities to a
different State executive official, enacted prior to election day, the
Governor shall have this responsibility.
During bipartisan discussions about this legislation, Senators
debated concerns about the prospect that a State's executive might take
deliberate actions to controvert or delay the issuance of the
certificate of ascertainment required under the Electoral Count Act.
That is why this section of the bill provides an expedited process in
Federal court for aggrieved Presidential or Vice Presidential
candidates to address such an unprecedented action, which could include
a State's executive failing to issue or transmit a certificate of
ascertainment prior to the specified deadline, or issuing or
transmitting a certificate of ascertainment that does not reflect the
State's accurate slate of electors.
The venue and expedited procedure provisions specified in subsection
5(d) of the bill do not establish a federal cause of action or provide
independent standing or jurisdiction to adjudicate legal claims
concerning the certificates of ascertainment. The provisions only
provide expedited procedures to resolve Federal claims that may arise
under existing law. The scope of these provisions is deliberately
narrow, intending only to ensure swift Federal judicial review of the
final act of the State in appointing its electors, which is the
issuance and transmission of a certificate of ascertainment.
Understanding that these provisions are intended to address a narrow
and, to date, unprecedented range of circumstances and claims that will
require limited, if any, fact finding by the judiciary, this section
provides no more than 6 days from the established statutory deadline
for the issuance of a certificate of ascertainment to resolve such
disputes. More than 6 days may be available to resolve such a claim if
a State executive issues a certificate of ascertainment in advance of
the statutory deadline, which may be permitted or required under State
law and frequently occurs.
A rule of construction ensures that these provisions related to
Federal court processes may not be construed to preempt or displace any
existing state or federal cause of action. This section therefore does
not affect any current process to resolve disputes involving a State's
election, such as recounts, election contests, or audits, nor does it
restrict any available judicial challenges related to the election
under State or Federal law.
Finally, this section requires, for purposes of the counting of
electoral votes at the joint session of Congress, that a certificate of
ascertainment issued pursuant to this section be treated as conclusive
in Congress. If any certificate of ascertainment is required to be
issued or revised by State or Federal judicial relief granted prior to
the date of the meeting of electors, that certificate shall replace and
supersede any other certificates. This is intended to provide clear
parameters to Congress for identifying each State's single, conclusive
slate of electors, and to ensure each certificate's accuracy.
To further aid in the identification of each State's conclusive
certificate of ascertainment, this section adds a requirement that the
certificate provided by each State's executive include at least one
security feature, as determined by the State. Such features may include
raised seals, watermarks, microprinted lines, or other security
features in common use on official documents. Pursuant to guidance
issued by the Archivist of the United States in advance of Presidential
elections, State officials should communicate the security features
that the State will use on its certificates of ascertainment in advance
to the Archivist.
Sec. 105. Duties of the Archivist. This section amends section 6 of
title 3 to restate the duties of the Archivist of the United States
with respect to the certificates of ascertainment of appointment of
electors received from each State.
Sec. 106. Meeting of Electors. This section establishes the time of
the meeting of electors in each State as the first Tuesday after the
second Wednesday in December, 1 day later than the date designated in
the underling law. Further, it makes technical amendments to section 10
of title 3 to ensure consistency of terms.
Sec. 107. Transmission of Certificates of Votes. This section
streamlines the requirements related to the transmittal of electoral
votes to various officials, and it requires all of the certificates to
be transmitted at the same time.
Sec. 108. Failure of Certificate of Votes to Reach Recipients. This
section makes technical and conforming amendments to provisions of the
underlying law related to instances when certificates do not reach the
intended recipients. This section also repeals the messenger's penalty
codified at section 14 of title 3 if the Archivist of the United States
does not receive the electoral votes by a specified date.
Sec. 109. Clarifications Relating to Counting Electoral Votes. This
section modernizes provisions of section 15 of title 3 related to the
counting procedures used by the joint session of Congress.
As amended by the Electoral Count Reform and Presidential Transition
and Improvement Act, section 15(b) reaffirms that the role of the
President of the Senate in the joint session of Congress is ministerial
in nature, and that the President of the Senate has no power to solely
determine, accept, reject, or otherwise adjudicate or resolve disputes
over the proper certificate of ascertainment, the validity of electors,
or the votes of electors. This provision is not intended to change the
role of the President of the Senate at the joint session. Rather, it
reaffirms the broad, consensus view of the President of the Senate's
role under article II and the 12th Amendment of the U.S. Constitution
in the counting of electoral votes by Congress.
The section increases the threshold required to raise an objection to
an
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elector or slate of electors during the joint session to one-fifth of
the Members of the Senate and House of Representatives duly chosen and
sworn. This amends the underlying law, which requires only one Member
from both chambers to lodge an objection. As amended, this higher
threshold mirrors the threshold found in section 5, clause 3 of article
I of the Constitution, which requires one-fifth of those present to
request that the yeas and nays entered on the Journal of the Chamber.
This higher threshold was chosen to ensure that any objection to a
State's electors enjoys broad support in Congress, thereby preventing
frivolous objections that unnecessarily interrupt Congress' duties. The
threshold is also not insurmountably high so as to prevent objections
that may warrant further debate and resolution.
The section retains the grounds for objection in the underlying law,
which may be made if electors of a State are ``not lawfully certified''
under a proper certificate of ascertainment or if the vote of one or
more electors ``has not been regularly given.'' During bipartisan
discussion about these grounds, Senators considered whether or not
these long-standing grounds were overly vague in light of recent abuses
in joint sessions of Congress. The bipartisan group considered that
there is historical and constitutional scholarship on the meaning of
these phrases, which were better understood when the Electoral Count
Act was enacted in 1887.
These grounds for objection were analyzed during a Senate Rules and
Administration Committee hearing on August 3, 2022. Professor Derek
Muller of the University of Iowa College of Law, who is a national
authority on the constitutional history and appropriate reading of the
grounds for objections under the Electoral Count Act, testified that
the phrase ``not lawfully certified'' limits the objection to ensuring
that the requirements of section 5 of the Electoral Count Act have been
met.
Professor Muller further testified that ``regularly given'' is
understood to limit the scope of the objection, citing his own
scholarship and that of other legal schools on the issue. In a law
journal article titled ``Electoral Votes Regularly Given'' (55 Ga. L.
Rev. 1529 (2021)), Professor Muller noted an academic's view of the
meaning of regularly given from 1888: `` . . . the two Houses cannot
reject the return on account of fraud or defect in the election of the
electors or in the determination of a controversy thereof, but may do
so on account of irregular action on the part of the electors
themselves in giving their votes for President and Vice-President.''
Thus, regularly given is relatively narrow in scope and generally
refers to post-appointment problems or controversies. This could
contemplate an instance when an elector cast a vote for a
constitutionally ineligible candidate for President or Vice President;
an elector cast an electoral vote at the wrong time or in the wrong
place; or in the wrong form and manner as specified under law; or the
electors' vote is the product of duress, bribery, or corruption.
The other reforms made by this legislation, including increasing the
required objection threshold and ensuring a single, conclusive slate of
electors in each State subject to State or Federal judicial review,
will make it harder for members of Congress to offer frivolous
objections.
As amended by this bill, subsection 15(e)(2) of the Electoral Count
Act clarifies how many votes constitute the denominator for purposes of
determining the majority of electoral votes. The Twelfth Amendment of
the U.S. Constitution provides that ``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.'' In the rare
historical instances in which there has been a problem with or
objection to an electoral vote, Congress's past precedent is unclear
and contradictory. The provision of the Electoral Count Reform and
Presidential Transition Improvement Act states that if a State fails to
appoint all of the electors it is entitled to receive, or if it has not
validly appointed electors under State law and Congress votes to reject
those electoral votes on that basis, then those electors are not
``appointed'' for purposes of the Twelfth Amendment and the denominator
is to be reduced.
Sec. 110. Rules Related to Joint Meeting. This section makes
technical amendments to section 17 of the Electoral Count Act,
including clarifying that when the two Chambers separate to resolve an
objection, all objections or other questions raised related to a given
State's electors must be addressed within the 2-hour limit and
specifies that any appeals or other questions relating to any rulings
made by the Presiding Officer at the joint session must be resolved by
votes of the two Chambers separately.
Sec. 111. Severability. This section adds severability provisions to
the Electoral Count Act should a court rule provisions of the law
unconstitutional.
We have before us an historic opportunity to modernize and strengthen
our system of certifying and counting the electoral votes for President
and Vice President. The events of January 6, 2021, reminded us that
nothing is more essential to the survival of a democracy than the
orderly transfer of power. There is nothing more essential to the
orderly transfer of power than clear rules for effecting it. I am proud
that Congress has seized this opportunity to enact these sensible and
much-needed reforms.
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