[Congressional Record Volume 171, Number 2 (Monday, January 6, 2025)]
[Extensions of Remarks]
[Page E4]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       ELECTORAL COUNT REFORM ACT

                                 ______
                                 

                         HON. JOSEPH D. MORELLE

                              of new york

                    in the house of representatives

                        Monday, January 6, 2025

  Mr. MORELLE. Mr. Speaker, in late 2022, President Biden signed the 
bipartisan Electoral Count Reform and Presidential Transition 
Improvement Act (``ECRA'') into law, establishing new requirements for 
the counting of Electoral College votes pursuant to the Twelfth 
Amendment to the United States Constitution (``Twelfth Amendment''). 
Congress intended that the ECRA clarify the sometimes-ambiguous 
existing federal law related to the counting of Electoral College 
votes, as established by the Electoral Count Act of 1887 (``ECA''). The 
overwhelming purpose of the ECRA was to prevent another attempt to 
disrupt or subvert an American presidential election through 
misrepresentation and obfuscation of the law.
  The ECRA, like the ECA before and within it, is the result of a valid 
and constitutional use of power by Congress. Article II of the United 
States Constitution allows each state to appoint its electors to the 
Electoral College in ``such manner as the Legislature thereof may 
direct,'' and designates Congress as the body responsible for setting 
Election Day and the meeting of the Electoral College. Further, the 
Twelfth Amendment sets the procedures by which the Electoral College 
must meet and transmit their votes to Congress. Crucially, the Twelfth 
Amendment empowers Congress--not the President of the Senate, or any 
other individual or body--to count the Electoral College votes. 
Furthermore, the Constitution permits Congress to determine the rules 
for settling any Electoral College disputes, which it has done through 
the enactment of the ECA and the ECRA. Today's joint session, during 
which Congress will certify the Electoral College votes of each of the 
50 states and the District of Columbia, will be the first meeting of 
its sort since ECRA's enactment. As such, this will be Congress's first 
time counting Electoral College votes in line with the ECRA's 
requirements.
  It appears that Kansas's certificate of ascertainment, submitted to 
the Archivist of the United States, was signed on December 12, 2024--
one day past the statutorily-required deadline for such certificates 
set by the ECRA. It seems certain that Kansas's certificate of 
ascertainment would have been signed and transmitted within the 
statutory deadline but for a small ministerial error entirely unrelated 
to the results of the election or the authenticity of the certificate. 
There is no dispute regarding the outcome of the presidential election 
in Kansas, nor would the inclusion--or exclusion--of Kansas's Electoral 
College votes determine the outcome of the recent presidential 
election. Despite the error, it is right that Kansas's Electoral 
College votes be opened and counted today.
  In the infancy of the ECRA's new statutory order, it is not 
surprising that states may misapprehend or overlook the law's 
requirements. Such minor lapses do not implicate the behavior that the 
ECRA intends to prevent--the deliberate misapplication or perversion of 
state or federal law to alter the outcome of a legitimate American 
election. In this instance, missing the ECRA's statutory deadline for 
certificates of ascertainment by a single day--due solely to a 
ministerial error--without other evidence of election-related 
irregularities, and in a state that will not be determinative to the 
overall outcome of the presidential election, is insufficient reason to 
reject Kansas's Electoral College votes. As such, Congress's 
consideration of the ECRA deadline is limited to the present 
circumstances.
  States are not, however, excused from the requirements of the ECRA, 
and the parties responsible for their states' certification and 
ascertainment obligations should, in the future, make every effort to 
ensure that their duties are timely and suitably discharged.

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