[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     Act would reform and modernize the outdated Electoral Count Act of 1887 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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