Electoral Count Act of 1887 (ECA)

The Electoral Count Act of 1887 (ECA) is a complex legal document that was passed by Congress in response to the presidential election of 1876 when different numbers of electoral votes were sent to Congress by several states. This placed the results of the election in doubt, causing Congress to send independent certifiers to the states. When the certifiers returned with inconclusive results, the presidential election was decided by a Congressional committee. These affairs delayed the process of American politics and revealed several large flaws in the system by which the president is elected.

To ensure that such an election can never occur again, Congress set out a complex set of rules by which electoral votes are to be counted and certified. Though the ECA holds a reputation for being one of the most complex pieces of electoral legislation ever passed by Congress, it was designed to eliminate doubt about the certification of electoral votes. This process received significant media attention in 2021, when President Donald Trump urged Vice President Mike Pence to avoid certifying the electoral votes in favor of his opponent, President Joe Biden. Pence chose to follow Congressional procedure, certifying that President Biden had indeed won the election.

Background

The Electoral Count Act of 1887 (ECA) was passed following the presidential election of 1876. The Civil War had ended just eleven years prior to the election, increasing political tensions across the newly reunited country. At the time, the Republican Party was far more powerful than their political opponents, having won both the presidential elections of 1868 and 1872. However, during the Congressional elections of 1874, the Democrats had won back control of the House of Representatives, showing that they still had the political might to challenge the Republican Party.

Those attending the Republican convention put forward Rutherford B. Hayes as their presidential candidate. At the time, Hayes was the governor of Ohio. During the last decade, Hayes had displayed a sympathetic attitude toward the South. Republicans hoped that his candidacy might win over voters through its contrast with the harsh beliefs of President Ulysses S. Grant. The Democratic Convention nominated Samuel J. Tilden, the governor of New York.

At the time of the election, the Republican Party remained committed to ensuring that Black Americans and freed slaves were able to exercise their rights throughout the South. Despite this, the continued economic costs of Reconstruction were causing the national economy to struggle, frustrating some Republican voters and politicians. The Democratic platform opposed the Republican platform, pushing for significant changes to the federal government to appeal to wealthy residents of the South. They believed that these changes would reunify the nation, leading to a better future for America as a whole.

When the day of the election arrived, the results were controversial. Hayes was clearly winning by popular votes, but the electoral vote remained contested. Both candidates claimed that they had won the electoral votes in Florida, South Carolina, and Louisiana, which would grant them victory in the election. Though independent electoral certifiers were sent to the states, they returned with conflicting reports. The deadlock went on for months, and Congress eventually created an Electoral Commission to decide the issue. The Electoral Commission sided with the Republicans, declaring Hayes victorious by a single electoral vote.

Overview

The Presidential Election of 1876 showed the politicians of the era that the Electoral College was a flawed system for electing a president. Though the system performed admirably during most elections, it had the potential to delay the appointment of a president for months beyond the end of the election. This could leave the nation leaderless in a time of crisis or allow politicians to manipulate the system to favor a particular candidate. To remedy this issue, members of Congress wrote the Electoral Count Act of 1887.

Though now referred to as the Electoral Count Act of 1887, the legislation was originally known as “An Act to Fix the Day for the Meeting of the Electors of President and Vice-President, and to Provide for and Regulate the Counting of the Votes for President and Vice-President, and the Decision of Questions Rising Thereon.” The politicians of the time were aware that such narrow margins during presidential elections would pose problems for future generations and were now aware that disputed electoral votes could cause widespread dissent if the results of future elections were not accepted by the general populace. Though it has a reputation as being one of the most complex pieces of electoral legislation to ever be passed by Congress, as of 2022, the ECA has remained in effect.

The ECA sets forth a wide variety of requirements, deadlines, and procedures that must be followed in presidential elections within the United States. It notes that the electors of every state are required to meet on the second Monday in January. It grants each state final determination regarding any controversy about the appointment of its electors as long as all disputes are resolved at least six days before the meeting of those electors. This six-day deadline for the official appointment of electors within each state is now known as the “safe harbor” date.

The ECA creates a variety of rules and regulations regarding the states and the certification of the electoral votes. It notes that the Senate and House are required to meet at one o’clock in the afternoon on the second Wednesday of February, at which point the electoral votes shall be opened and read. To avoid conflict or confusion, the votes are required to be counted by the vice president of the United States in the presence of both the House and the Senate. The vice president hands the votes to four tellers, two from the House and two from the Senate, who are required to read the votes out loud. Once the votes are read to Congress, the tellers record them.

Though this process for handling electoral votes is often considered slow and unusually stringent, it was designed to remove any possible doubt about the contents of the electoral votes. However, the ECA also contains provisions for handling objections. To ensure that all objections are made with credible concerns, they must be submitted in writing and signed by both a senator and a member of the House of Representatives. Additionally, the written objections must state their arguments clearly and concisely. If such an objection is submitted, it will be considered separately by both the House and the Senate.

A state’s independent certification of its electoral votes may only be overturned by such an objection. When arguing over whether an objection should be accepted or rejected, each senator or member of the House of Representatives is given just five minutes to voice his or her opinion. If the House or Senate cannot agree on whether an objection should be accepted or rejected, the votes are to be counted as if they were accepted. Finally, the ECA commits Congress to follow these regulations and procedures in all future elections unless the ECA itself is overturned.

The act has proven particularly controversial when the vice president is responsible for opening and certifying the voters that would lead to the defeat of his or her own party. For example, Vice Presidents Richard Nixon, Al Gore, Dan Quayle, Mike Pence, and Joe Biden all certified electoral results that resulted in a loss of power for their own parties. Traditionally, vice presidents can avoid the complex process of sorting objections by rejecting any objections related to their own loss. This ensures that no electoral votes will be overturned but keeps the government unified and the vote certified.

On January 6, 2021, President Donald Trump pressured Vice President Pence to avoid certifying the results of the election. The president falsely claimed that this would allow Pence to change the results of the election, potentially granting the victory to Trump instead of President Biden. However, though the ECA is commonly criticized for its complex and ambiguous wording, legal experts insisted that such an action would not be allowed. Additionally, many alleged that by manipulating the act in such a manner, Pence would be denying the states their say in the electoral process. Though Pence went on to certify the election, the process and ensuing controversy caused talks about amending the ECA to modernize the document. In 2022, proposals about updating the ECA had bipartisan support and were discussed in the relevant Congressional committees.

Bibliography

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“Congress May Change This Arcane Law to Avoid Another Jan. 6.” NPR, 8 Jan. 2022, www.npr.org/2022/01/08/1071239044/congress-may-change-this-arcane-law-to-avoid-another-jan-6. Accessed 9 Mar. 2022.

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“The Electoral Count Act of 1887: Proposals for Reform.” Committee on House Administration Majority Staff, 2022, cha.house.gov/sites/democrats.cha.house.gov/files/documents/Electoral%20Count%20Act%20Staff%20Report‗.pdf. Accessed 9 Mar. 2022.

“What Is the Electoral College?” National Archives, www.archives.gov/electoral-college/about. Accessed 9 Mar. 2022.