Electoral Count Act of 1887: Rules, January 6, and 2022 Reform

The Electoral Count Act of 1887 is the federal statute that governs how states certify their presidential electors and how Congress counts the electoral votes on January 6. Codified mainly at 3 U.S.C. §§ 5, 6, and 15, its most important provisions were rewritten by the Electoral Count Reform Act of 2022, so the law in force today is the 1887 framework as substantially amended. It sets a state certification deadline, defines the Vice President’s role in the joint session as ministerial, and limits the grounds on which members of Congress can object to a state’s electoral votes.

Why the Law Exists

The statute grew directly out of the 1876 presidential election. Republican Rutherford B. Hayes and Democrat Samuel Tilden both claimed victory after returns from Louisiana, Florida, South Carolina, and Oregon came in disputed, with rival slates of electors submitted from each. The Constitution gave Congress no procedure for deciding which returns were legitimate. Congress ultimately created a one-off Electoral Commission of House members, Senators, and Supreme Court Justices, which awarded every disputed vote to Hayes and handed him the presidency by a single electoral vote.¹

Both parties came out of that experience convinced that improvising rules mid-crisis was dangerous. Eleven years of debate later, Congress passed the Electoral Count Act to put a permanent framework in statute. The original text was notoriously vague in places, and those ambiguities went largely untested for more than a century before the 2022 reforms rewrote them.

How States Certify Their Electors

The process starts in each state. Under 3 U.S.C. § 5, the governor — or another official if state law names one — must issue a certificate of ascertainment no later than six days before the Electoral College meets. The certificate names the appointed electors and reports the vote totals for each candidate, and it must be issued under state laws that were enacted before Election Day.² That timing rule blocks a legislature from rewriting the rules after seeing the results.

Each certificate must bear the state’s official seal and include at least one security feature the state has chosen to verify authenticity.² The security-feature requirement was added in 2022 to guard against forged certificates. States including Indiana and Michigan have updated their laws to comply.³ The governor must transmit the certificate to the Archivist of the United States immediately and by the fastest available method.⁴

The legal consequence of meeting the deadline is the heart of the statute. Congress must treat the governor’s certificate as conclusive when it counts the votes. The only recognized exception is a state or federal court order that replaces or modifies the certificate before the electors meet.⁵ This is the “safe harbor” that shields on-time, lawfully issued state results from being reopened in Washington.

What Happens on January 6

Congress meets in joint session at 1:00 p.m. on January 6 in the House chamber. The Vice President, acting as President of the Senate, presides. The statute now states expressly that the Vice President’s role is “solely ministerial,” with no discretion to accept or reject electoral votes.⁶ That was always the assumption under the original 1887 text, but the 2022 amendments spelled it out after competing claims arose in 2020.

Four tellers, two appointed by the Senate and two by the House, do the actual counting work. The Vice President opens each state’s certificate in alphabetical order beginning with Alabama, hands it to the tellers, and they read the results aloud. Once every state has been read, the Vice President announces the final result.⁶

How Objections Work

Members of Congress can object to a state’s electoral votes, but the current law makes it hard. An objection must be in writing and signed by at least one-fifth of the members of each chamber — roughly 20 Senators and 87 Representatives.⁶ Under the original 1887 act, a single Senator paired with a single House member could trigger the process. Raising the threshold was one of the largest structural changes made in 2022.

Only two grounds are permitted:

The electors were not lawfully certified under a valid certificate of ascertainment issued under 3 U.S.C. § 5.
An elector’s vote was not regularly given, meaning the elector did not cast the vote properly or was not eligible to serve.

No other basis is allowed.⁷ The original act never defined what a valid objection was, which left room for challenges based on vague fraud claims. The reform closed that.

When a qualifying objection is raised, the two chambers separate to debate. Total debate on all objections tied to a single state is capped at two hours per chamber, split equally between the majority and minority leaders.⁸ For the objection to succeed, both the House and the Senate must independently vote to sustain it. If either chamber votes no, the objection fails and the votes stand.⁶

Competing Slates and Judicial Review

The most volatile scenario the original 1887 act tried to address was a state sending two conflicting sets of electoral votes. The old text created a tangled tie-breaker hierarchy that, in practice, invited rival factions inside a state to each claim to be the legitimate electors.

The current law takes a different approach: prevent the competing slates from being generated in the first place. Only electors appointed under a certificate of ascertainment issued by the governor (or state-designated official) under 3 U.S.C. § 5 may have their votes counted. That certificate is conclusive unless a court has ordered it replaced or modified. If a state somehow ends up with more than one slate anyway, none of that state’s electoral votes count.⁹

Genuine certification disputes now go through an expedited federal judicial pathway. An aggrieved presidential candidate can bring the case before a special three-judge panel, with a direct appeal to the Supreme Court, and the court must resolve it before the electors meet.⁹ Fights over which slate is legitimate are routed to judges rather than to the joint session.

What the 2022 Reform Changed

The Electoral Count Reform and Presidential Transition Improvement Act, signed in December 2022, rewrote the most contested provisions of the original statute. The main changes:

The Vice President’s role in the joint session is expressly “solely ministerial.”⁶
An objection now requires one-fifth of each chamber, up from one member of each chamber.⁶
Only two grounds for objection are permitted: electors not lawfully certified, or a vote not regularly given.⁷
The governor, or another official designated by state law, is the sole authority to issue the certificate of ascertainment.²
Each certificate must bear the state seal and include at least one anti-fraud security feature.²
Certification disputes go to a three-judge federal panel with direct Supreme Court appeal, resolved before the electors meet.⁹
The old “failed election” provision, which had allowed state legislatures to appoint electors after Election Day when a state had “failed to make a choice,” is gone. It is replaced by a narrow exception for catastrophic events that require extending the voting period under pre-existing state law.

The ultimate counting of votes still belongs to Congress, but the avenues for disruption are far narrower than they were under the original 1887 text.

1
Office of the Historian, U.S. House of Representatives. The Electoral Vote Count of the 1876 Presidential Election
2
Office of the Law Revision Counsel. 3 USC 5 – Certificate of Ascertainment of Appointment of Electors
3
National Conference of State Legislatures. Enactments Relating to the Electoral Count Reform Act
4
Office of the Law Revision Counsel. 3 USC 6 – Duties of Archivist
5
Office of the Law Revision Counsel. 3 U.S. Code 5 – Certificate of Ascertainment of Appointment of Electors
6
Office of the Law Revision Counsel. 3 USC 15 – Counting Electoral Votes in Congress
7
Office of the Law Revision Counsel. 3 USC 15 – Counting Electoral Votes in Congress
8
Office of the Law Revision Counsel. 3 U.S. Code 17 – Same; Limit of Debate in Each House
9
Congress.gov. Text – S.4573 – 117th Congress (2021-2022) – Electoral Count Reform Act of 2022