Electoral Count Reform Act

Floor Speech

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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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