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The
Electoral Count Act of 1887 Pub.L. 49–90, 24
Stat. 373 is a United States federal law establishing procedures for the counting of
electoral votes by
Congress following a
presidential election. The law has subsequently been
codified, with some modifications, into
positive law[1] in
Title 3, Chapter 1 of the United States Code, which also contains other provisions related to presidential elections and vacancies. The law was enacted in the aftermath of the disputed
1876 presidential election, in which several states submitted competing slates of electors and a
divided Congress was unable to resolve the deadlock.
The law has been criticized since it was enacted, with an early commenter describing it as "very confused, almost unintelligible."
[2]:643 Modern commenters have stated that the law "invites misinterpretation," observing that it is "turgid and repetitious" and that "
ts central provisions seem contradictory."[3]:543 For example, one key ambiguity in Section 4 (now 3 U.S.C. § 15) involves a situation where multiple slates of electors are sent from a state, and the House and Senate cannot agree whether the law requires the slate certified by the governor to count, or requires that no slate should be counted.[4]
The central provisions of the law have not been seriously tested in a disputed election, the closest approach being in the contentious 2000 presidential election, which was ultimately resolved before the electors cast their votes. However, the law's timing provisions did play a role in court decisions, such as Bush v. Gore, regarding that election.
Certificate of ascertainment[edit]
Section 3 (now 3 U.S.C. § 6) requires the governor of each State to prepare seven original copies of a "certificate of ascertainment", each under the seal of the state, which identifies the electors appointed by the state and the votes they received, as well as the names of all other candidates for elector and the votes they received. The electors that are being appointed are determined “under and in pursuance of the laws of such State providing for such ascertainment.” The name of the presidential candidate and vice-presidential candidate do not appear on the certificate; neither do the number of votes. The certificates only include the names of the slate of electors.[21]
The certificate must be issued "as soon as practicable after the conclusion of the appointment of electors in [a] State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment ...." That is, the certificates must be prepared as soon as possible after Election Day. The certificate must be sent by registered mail to the Archivist of the United States at least six days before the Electoral College meets[21] and six original copies must be delivered to the electors on or before the day on which they are required to meet and cast their votes.[22]
Certificate of final determination[edit]
If an election had been contested, 3 U.S.C. § 6 also provides that "if there shall have been any final determination in a state in the manner provided for by [state] law of a controversy or contest," then the governor must, "as soon as practicable after such determination," communicate, "under the seal of the State ... a certificate of such determination in form and manner as the same shall have been made."[22]
Notably, the relevant clause in 3 U.S.C. § 6 differs substantively from the original clause in Section 3 of the 1887 law, as shown below:
- Old version: "if there shall have been any final determination in a State of a controversy or contest as provided for in section two of this act, it shall be the duty of the governor [to transmit a certificate of such determination etc.]"
- New version: "if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the governor [etc.]
Under the original version, the clause appears to only apply in situations where the final determination satisfies the Section 2 "safe harbor." The current version requires a certificate to be sent regardless of whether the safe harbor applies. The difference may be relevant[discuss] since Section 4 (now 3 U.S.C. § 15) prohibits Congress from rejecting any electors "whose appointment has been lawfully certified to according to [3 U.S.C. § 6]."[23] (See Substantive counting rules below.)
This process was used by the state of Florida following the 2000 election when it submitted a "Certificate of Final Determination of Contests Concerning the Appointment of Presidential Electors" that was signed by the governor and secretary of state. As narrated by an attorney in the Office of the Federal Register at the time:
[O]n December 12, the Supreme Court announced its decision in favor of Governor Bush.... While other lawyers argued over the full meaning of the Court's decision in Bush v. Gore, the Office of the Federal Register pored over it for a procedural path to formally end the dispute over Florida's electors. Because federal law did not account for a "re-ascertainment" of electors after a partial recount of votes, we had to devise a new form of document to suit the Court's opinion. The Florida Secretary of State submitted this unique final determination to us, and from our procedural point of view, the Florida electoral fight came to an end.[24]
Certificate of vote[edit]

The 2012 Certificate of Vote issued by Maryland's delegation to the Electoral College
As noted above, the Twelfth Amendment simply requires the electors to sign, certify, seal, and transmit their votes (now known as the "certificate of vote") to the president of the Senate. However, a clause in Section 3 required the governor to deliver certificates of ascertainment to the electors, and required the electors to "inclose[] and transmit[]" the certificates of ascertainment along with their votes. The electors must now make and sign six certificates of vote, and annex to each one of the list of electors that has been "furnished to them by direction of the governor."[25]
The last bold and underlined part is not difficult to understand. The governor is to deliver the ascertainment of the electors. Only the governor can do this and not the GOP or random Legislatures.