Electoral Count Act and the 2022 Reform

The Constitution says only that the President of the Senate shall, in the presence of the House and Senate, open the electoral certificates and the votes shall then be counted. The disputed 1876 election, in which three Southern states sent rival slates of electors, was resolved only by an improvised Electoral Commission in 1877. To prevent a repeat, Congress passed the Electoral Count Act, signed on February 3, 1887, which set deadlines for states to resolve disputes, a safe harbor for timely state determinations, and procedures for objections in Congress.

The 1887 law was notoriously complex and ambiguous. After the 2020 election, some argued that the Vice President could reject or delay counting electoral votes, and objections from a single House member and a single senator forced debate on two states' votes during the joint session of January 6, 2021, which was interrupted when rioters breached the Capitol. In response, Congress passed the Electoral Count Reform Act with bipartisan support, and President Joe Biden signed it on December 29, 2022, as part of a year-end spending law.

The reform states that the Vice President's role in the count is solely ministerial, raises the threshold for an objection to one-fifth of the members of each house, requires each state to designate one official to certify its electors, limits the grounds for objection, provides expedited review of certification disputes by three-judge federal courts, and bars states from changing the rules after Election Day except in extraordinary circumstances. The January 6, 2025, count of the 2024 election, the first under the new law, proceeded without objections. Supporters say the reform closes dangerous loopholes, while some critics say it still leaves room for disputes.