S-4573-117
Placed on Senate Legislative Calendar under General Orders. Calendar No. 529.
Sponsored by Susan Collins (R-ME)
What it does
This bill would revise the rules for how states cast and count electoral votes in presidential elections, and update the presidential transition process. It would clarify that only a state's governor (or another official designated by state law) may certify the state's electors, that elector selection must follow laws enacted before Election Day, and that the Vice President's role in the joint session of Congress is purely ceremonial. It would also raise the threshold for members of Congress to formally object to a state's electoral votes from one member of each chamber to one-fifth of the sworn members of both chambers, and would allow more than one presidential candidate to receive federal transition resources under certain conditions.
Who benefits
All eligible voters, who would gain clearer and more uniform rules governing how their presidential votes are counted. Presidential and vice-presidential candidates, who would gain access to expedited federal court review if they believe a state's certificate of ascertainment was improperly issued. Multiple major-party candidates in close or disputed elections, who could receive federal transition funding simultaneously. State governors, whose authority to certify electors would be formally codified in federal law.
Who is hurt
Members of Congress who currently hold the ability to object to electoral votes with only one co-signer from each chamber — the new one-fifth threshold would significantly reduce the practical ability of small groups of legislators to formally contest electoral results. Presidential candidates who previously could have benefited from ambiguity in the existing law regarding who certifies electors or how Congress counts them. State legislatures that might prefer to designate an official other than the governor to certify electors could find their flexibility constrained if federal law defaults to the governor.
Supporters argue
Supporters argue that the existing Electoral Count Act of 1887 contains vague and outdated language that created dangerous ambiguity about the Vice President's power to reject or delay electoral votes, and about Congress's ability to override a state's certified results. They contend that clarifying these rules in advance of a contested election protects the integrity of the democratic process by ensuring that the outcome of a presidential election is determined by voters, not by procedural manipulation in Congress. They also argue that raising the objection threshold prevents a small minority of legislators from weaponizing the joint session to delay or derail a legitimate electoral outcome, and that codifying the governor's certification role removes opportunities for competing slates of electors to be submitted from a single state.
Opponents argue
Opponents argue that the bill improperly limits Congress's constitutional authority to evaluate the validity of electoral votes, and that raising the objection threshold strips individual legislators of a meaningful check on potentially fraudulent or unlawfully certified state results. They contend that designating the governor as the default certifying official could conflict with state constitutional structures where another official holds that responsibility, raising federalism concerns under the Tenth Amendment. Some critics also argue that allowing multiple candidates to receive transition resources simultaneously could normalize disputed election outcomes and create confusion during the transition period, and that expedited judicial review may not provide adequate time for courts to carefully evaluate complex constitutional questions about elector certification.
Constitutional context
The bill implicates Article II, Section 1, which grants state legislatures the authority to direct the manner of appointing electors, and the Twelfth Amendment, which governs the counting of electoral votes by Congress. The bill's clarification that the Vice President's role is ministerial touches on the separation of powers. The provision for expedited judicial review relates to Article III court jurisdiction. The Tenth Amendment is relevant to the federalism question of whether federal law can designate which state official certifies electors. Cases such as Kelo v. New London (2005) and Bush v. Gore (2000, though not listed) inform the broader landscape of federal court intervention in state electoral processes. The anti-commandeering doctrine established in cases following Murphy v. NCAA is also relevant to whether Congress can direct state governors to perform certification duties.
Checks and balances
The bill shifts authority in several directions. It reduces the power of individual members of Congress by raising the objection threshold, thereby limiting the legislative branch's practical ability to contest electoral votes. It reinforces the executive branch at the state level by codifying the governor's certification role. It expands the role of the federal judiciary by creating an expedited review process for certification disputes. The Vice President's role is explicitly reduced to a ministerial function, removing any implied discretionary power in the joint session.
Historical precedent
The original Electoral Count Act of 1887 was passed in response to the disputed 1876 presidential election between Rutherford B. Hayes and Samuel Tilden, in which competing slates of electors from multiple states created a constitutional crisis. The 2000 presidential election (Bush v. Gore) also produced litigation over state certification processes and federal court intervention in electoral disputes.