The Constitutional Underpinnings of the ECRA

When the Senate Committee on Rules and Administration convened in August 2022 to consider the Electoral Count Reform Act (ECRA), there was a certain amount of inside baseball. Senators and witnesses mused about the availability of mandamus actions to enforce nondiscretionary election certification duties. The storied Hayes-Tilden presidential showdown of 1876 received its share of references. But in the opening minutes of the hearing, Sen. Susan Collins (R-Maine) made the stakes crystal clear: “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.”

Crafting those clear rules is exactly what the ECRA’s drafters set out to do. And while 1876 informed the discussion, much more recent history loomed over the proceedings. Sen. Amy Klobuchar (D-Minn.) made that connection explicit. The legal framework that the ECRA’s drafters sought to revise, the Electoral Count Act of 1887 (ECA), had become “the cornerstone, sadly, of a plan hatched by President Trump and his allies that led to an insurrection at the Capitol.” The “bipartisan work” represented in the ECRA, she argued, “would guard against efforts like those” recurring in the future. Those senators were hardly alone in drawing that connection. When the House’s Committee to Investigate the January 6th Attack on the United State Capitol issued its final report, it included 11 recommendations. The top one was reform of the Electoral Count Act. 

In the final days of the 117th Congress, the bill passed. It has several features designed to reduce ambiguity, confusion, and conflict in the process of counting electoral votes—and to stymie bad-faith actors looking for a legal foothold to overturn the results. It eliminated the statute that had authorized state legislatures to appoint electors subsequent to Election Day on the grounds that the state had “failed to make a choice.” It clarified the deadline for governors to issue certificates identifying which electors had been appointed pursuant to state law. It set up expedited procedures for federal court review of questions relating to those certificates. It also clarified the rules for counting electoral votes at the joint session. 

But if the ECRA is supposed to serve as an antidote to crises like that of Jan. 6, 2021, then there seems to be an elephant in the room: Congress’s power to pass such a law in the first place. In his now-infamous legal memos claiming to “war game” the joint session, John Eastman argued that the existing legal framework—the ECA—was “likely unconstitutional.” The starting premise of his extravagant legal argument in favor of Vice President Pence’s supposed unilateral authority to count (or reject) votes was that Congress lacked the authority to enact a statute prescribing rules for the electoral vote count. (In recent days, Eastman has been quoted in the press advancing a similar argument in relation to the ECRA.)

Eastman’s memos have few defenders. But he was not the first to question the validity of the ECA. A persistent thread in the legal literature has attacked Congress’s authority to enact statutes regulating the counting of electoral votes. One article from 2002 argued that the Electoral Count Act’s provisions governing the counting of electoral votes “violat[ed] the text and structure of the Constitution in multiple ways.” Other critics have argued that “the ECA unconstitutionally impinge[d] on Congress’s internal procedural authority and is unenforceable.” More recently, another pair of scholars published a paper contending “that Congress has unconstitutionally arrogated to itself the authority to challenge and resolve the legitimacy of electoral votes.”

Over the coming weeks, the ECRA is going to be road-tested for the first time. Given the weighty goals of its legislative sponsors—and the high stakes of having clear and durable rules governing presidential elections, especially in light of persistent efforts to sow doubt about the electoral process—we ought to have an answer once and for all to the question: Does Congress have authority to pass legislation regulating the counting of electoral votes? 

The answer is an emphatic yes. Accordingly, if there are postelection disputes that turn on the application of the ECRA’s rules for counting electoral votes, courts (as well as members of Congress) should not be distracted by arguments that Congress lacked authority to enact it. (I develop this argument in greater detail in an article that will be published in the Vanderbilt Law Review next spring; a working draft of that article is available here.)

A starting place for understanding the foundation of Congress’s authority is the constitutional architecture of presidential elections, consisting primarily of Article II and the 12th Amendment. Article II empowers each state to appoint its electors “in such manner as the Legislature thereof may direct.” Of course, every state in the modern era appoints electors based on the outcome of a popular vote. Under Article II, Congress sets the dates for appointing electors—in other words, Congress designates Election Day. Article II also allows Congress to set a date for the electors to meet to cast their votes. 

The 12th Amendment sets procedures for the electors to “vote by ballot for President and Vice President,” and obligates them to transmit their votes to the president of the Senate (usually, but not always, the vice president) at the “the seat of government.” It then directs the president of the Senate to open the certificates containing the votes at the joint session, and directs that “the votes shall then be counted.” This process takes place in the shadow of the 20th Amendment, which (among other things) fixes noon on Jan. 20 as the moment when one administration will roll into the next; critically, that amendment also provides that the new Congress will begin in the middle of this interregnum between Election Day and Inauguration Day, on Jan. 3.

This constitutional architecture does not explicitly authorize Congress to pass legislation governing the joint session, but an analysis of the relevant constitutional text, structure, and history reveals ample authority to enact a statute like the ECRA. Understanding why requires answering two related questions. First, who actually counts the electoral votes? Contrary to Eastman’s argument (and to scholars who have questioned Congress’s power here), the answer is that Congress (not the president of the Senate) has that duty. But this conclusion entails the second question. Usually the counting of votes is mere arithmetic. But if there is a dispute over which votes to count, how does Congress decide? Taking each of those questions in turn illuminates the underpinnings of Congress’s power to regulate this process through legislation. 

First, Congress counts the votes, not the president of the Senate. To the extent there remains debate over this proposition, it is grounded in the grammar of the relevant provision of the 12th Amendment, which states: “the 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 mid-sentence switch from the active voice to the passive voice has led many to squint at this provision in search of an answer to whether Congress or the president of the Senate is the relevant actor. But the presence of ambiguity does not render the text indeterminate. I share Derek Muller’s view that:

The change in verb voice does suggest a change in responsibility. While a plausible inference could conclude that the phrase “the votes shall then be counted” may be ambiguous as to who should count, the decision to change verb voices from active to passive after allocating express responsibility to the President of the Senate is more significant than the failure to add Congress in a role of express responsibility.

This textual conclusion is bolstered by structural and historical considerations. (Though I don’t have room here to explain why, I address those issues in the forthcoming paper linked above. Others have also refuted the proposition that the president of the Senate wields unilateral power to count votes and resolve disputes.)

This brings us to our second question: If Congress is assigned to count “the votes,” what happens if there is a dispute about what “the votes” are—for example, if there are multiple slates of putative electoral votes from a particular state? The Constitution doesn’t provide a clear playbook—a gap that became famously consequential in the aftermath of the Election of 1876. Oceans of ink have been spilled on that dispute. For immediate purposes, I’ll just note that Congress confronted dueling slates of electors from four states. In the absence of a clear constitutional road map for resolving those disputes, Congress devised a good-for-one-election-only statute that created a special commission for doing so. That disputed election and its aftermath gave rise to the modern statutory framework governing presidential elections. In 1887, Congress passed the ECA, which governed the next 34 presidential elections until being revised by the ECRA.

The Election of 1876 illustrates an important point: the 12th Amendment contains significant interstitial space. Much of the time—most of the time—counting the votes will be straightforward, a mere matter of tallying. It will remain a simple arithmetical exercise as long as everyone agrees on what votes to count. But as soon as there is a dispute about whether to count any particular vote—as there has been periodically throughout American history—the duty to count implies the power to resolve those disputes. 

Of course, this does not mean that Congress may simply count whichever votes it prefers. It may not. The 12th Amendment’s command is clear: Once transmitted to the seat of government and opened by the president of the Senate at the joint session, “the votes shall then be counted.” “The votes” that are to “be counted” are the ones that were cast by electors following the procedures set out in the 12th Amendment; those electors, in turn, are the people appointed by each state in the manner that its legislature has directed, as provided in Article II. There are therefore at least two categories of questions that Congress may confront. First, was the vote cast by a duly appointed elector? Second, did that elector cast her vote consistently with all relevant legal requirements? 

Nothing in the Constitution provides answers to these questions. For example, if Congress receives votes from multiple slates of electors, how do you determine which electors were actually appointed in the manner directed by the state’s legislature? One approach is to rely on procedural considerations, such as deeming valid an appointment that’s certified by a particular state entity, like the governor, and meets preset specifications. (That’s the approach taken by the ECRA, and the ECA before it.) Alternatively, we might imagine a substantive standard, something like: “In a state that appoints electors based on the popular vote, an elector was duly appointed if she was affiliated with a candidate who actually received the largest share of the vote.” Nothing in the Constitution’s text prescribes one of those methods over the other. 

In addition to those interstitial questions about what substantive standards to apply, the 12th Amendment says nothing about the procedures Congress should use in resolving disputes. What needs to happen for a putative vote (or slate of votes) to be rejected? One could imagine the 535 members of the joint session voting as a unitary body. Alternatively, decisions could devolve to each house separately voting on objections (the approach taken in the ECA and ECRA), in which case Congress would need a rule about when an objection triggers separate consideration and what happens if the two houses disagree on what to do.

I highlight these gaps in the constitutional architecture because they point toward the source of Congress’s legislative authority. This is precisely the kind of critical gap-filling where Congress’s power under the Necessary and Proper Clause comes into play. As the Supreme Court explained in United States v. Comstock, “in determining whether the Necessary and Proper Clause grants Congress the legislative authority to enact a particular federal statute, [the Court] look[s] to see whether the statute constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.” If so, the Court will generally uphold it assuming it does not (as the Court put it in National Federation of Independent Business v. Sebelius) unduly intrude on state power or otherwise “undermine the structure of government established by the Constitution.” 

It is not hard to see how the ECRA is “rationally related” to the implementation of Congress’s vote-counting power. While disputes over which electoral votes to count have been (mercifully) rare over the course of American history, they are hardly unprecedented. Confronting such a dispute without a clear decision-making protocol raises obvious perils. It increases the risk of Congress getting it wrong and rejecting the votes of electors actually appointed according to state law. Moreover, in the absence of an effective decision-making framework, disputes may result in standoffs that imperil the very ability of the executive branch to function. Arriving at Inauguration Day with a dispute that remains unresolved—potentially resulting in multiple candidates claiming that they have been elected and intend to take the oath of office—would radically undermine the ability of the executive branch to function. After all, to operate effectively, that branch depends on uninterrupted clarity about who gets to wield “the Executive Power” of the United States and issue orders as commander-in-chief. 

The ECRA’s provisions regulating the joint session represent an effort by Congress to reduce the risk of such high-stakes showdowns. They create a framework for Congress to determine which votes to count in light of the relevant constitutional requirements. And because the ECRA provides clear notice to states about how to ensure that the electors they appointed are the ones whose votes will count, the ECRA poses no risk of intruding on state authority—to the contrary, it reinforces the states’ Article II authority by reducing the risk that Congress counts the wrong votes.

Long-standing historical practice further bolsters Congress’s power in this arena. When it comes to enacting legislation to facilitate the counting of electoral votes, the history goes back more or less to the beginning. In 1792, the Second Congress passed a law structuring the process for states to transmit their electoral votes to Congress. In many ways, this was a striking assertion of congressional power. It purported to choreograph the meeting of the electors beyond anything contemplated by Article II. More significantly, it also enlisted state “executives,” Article III judges, and the U.S. secretary of state into the mix—all characters with no explicit role in Article II. Yet these provisions, while conspicuous in their departure from constitutional text, made perfect sense. They prescribed a forensic pedigree, including a chain of custody, for the certificates reflecting the electoral votes. The practical benefits of doing so are obvious: It equipped Congress to know which electoral votes were valid. From the earliest days of the Republic, in other words, Congress recognized the need to legislate within the Constitution’s interstitial spaces in order to enable a reliable and authoritative vote count. This understanding has persisted into the modern era. Since the election of 1888, every Congress in session following a presidential election has been subject to the procedures of the ECA. Through vicissitudes of partisan control of each chamber, during landslide presidential elections and nail-biters that remained disputed up until the joint session, all of the relevant players have treated that statute as authoritative.

Constitutional structure also reinforces Congress’s power here. To fully understand Congress’s authority to regulate the counting of electoral votes, we need to follow the Constitution forward in time. The 20th Amendment, ratified in 1933, changes the overall structure in which presidential elections take place. While I think the Necessary and Proper Clause adequately supports Congress’s power in this domain, to the extent anyone sees it as a close question, the structural shift brought about by the 20th Amendment should settle the question definitively. 

Colloquially referred to as the “lame duck amendment” when adopted, the 20th Amendment reconfigured the constitutional calendar for federal elections, thereby shortening lame-duck tenures. This seemingly mundane scheduling issue carried significant democratic freight. The prior calendar was hard-wired into the political process by a combination of constitutional text and founding-era practice. After the Confederation Congress set the date for the first session of Congress and the first presidential term to start on March 4, 1789, those dates were locked in by the fixed term lengths established in Articles I and II. Combined with Article I’s requirement that Congress start each session in December, this meant that each new Congress first convened in December of the year following an election (i.e., 13 months after the most recent federal election), and its second session consisted of a “short session” running from the following December to March—hence, the two problems the 20th Amendment was intended to solve. First, the relatively long lame-duck period between each congressional election in November and the end of the outgoing Congress’s term in March was seen to lack democratic legitimacy. Second, this schedule meant that, in presidential election cycles, the “old Congress”—more than two years removed from having been elected, and having potentially been “repudiated” by voters in the most recent cycle—remained in office to preside over 12th Amendment proceedings. This was seen as especially troubling in the event of a contingent election, when a House lacking in democratic legitimacy would get to choose the new president. The 20th Amendment solved those problems by setting the current schedule for congressional and presidential transitions.

What does the lame-duck amendment tell us about Congress’s authority to enact laws like the ECRA? By shifting the constitutional timeline, the amendment changed the relationship between the three key moments in a presidential election: the appointment of electors, the meeting of the electors to cast their ballots, and the counting of the electoral votes at the joint session. Since the adoption of the 20th Amendment, the transition from one Congress to the next takes place in the middle of that timeline. 

The shift from an “old Congress” (elected prior to the presidential election) to a “new Congress” makes the existence of a continuous legal framework indispensable. In the absence of a statutory framework governing the counting of electoral votes, it would be left to the “new Congress” to determine how it will proceed when it counts electoral votes, including how it will resolve disputes. But any decision-rules enacted by the new Congress will take effect too late in time for states and electors to conform their behavior to those rules. Imagine that the two houses issue a concurrent rule on Jan. 3 of an inauguration year, declaring that they will count all votes (but only those votes) by electors whose appointments are certified by all members of the state’s supreme court. Functionally, this would be a flop. A state that wants its appointment of electors to have “conclusive” effect (to use the term in both the ECA and the ECRA) would not yet have a rule from the new Congress to guide its behavior. The consequences of that kind of disconnect are severe: Congress might refuse to count votes cast by a state’s validly appointed electors. 

The structural significance of the 20th Amendment also tells us something about its original meaning. When the amendment was ratified, the ECA had been on the books for nearly half a century. Put yourself in the position of someone in 1933 seeking to understand what the proposed amendment would do. They would have read the amendment against the backdrop of existing law and practice. They would have known that, as a legal matter, the ECA governed the counting of electoral votes, including resolving disputes about those votes. They would have known that all relevant institutional actors had treated the statute as authoritative since its enactment. These contemporaneous interpreters also would also have known that the ECA established lines of connection and continuity across the inflection points that comprise a presidential election. 

It is, in theory, possible that these actors would have understood the 20th Amendment as working implicitly to scuttle the lines of continuity that had functioned effectively for the prior half-century to connect the three stages of a presidential election. But as a practical matter, it strains credulity to assume that, read in context, the 20th Amendment could have conveyed the meaning that it would reconfigure the timeline of presidential elections in a way that would suddenly make it impossible to ensure that continuity. It is simply implausible to conclude that the amendment’s original public meaning included a collapse of the legal structure that had facilitated presidential elections for half a century. To the extent the 20th Amendment’s meaning presupposes the existence of a statute governing the counting of electoral votes, that should guide our interpretation of the overall constitutional structure. Concluding that Congress lacks the ability to enact such a statutory framework, in other words, renders the 20th Amendment incoherent. 

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Concluding that the ECRA is invalid would unsettle well-justified expectations and increase the risk of future disputes with no clear off-ramp. But as the Supreme Court recently put it in Trump v. Anderson, “[n]othing in the Constitution requires that we endure such chaos.” Congress enacted the ECRA to protect democracy and ensure the orderly transfer of power. It was well within its authority in doing so.