Electoral Count Reform and Presidential Transition Improvement Act of 2022

To amend title 3, United States Code, to reform the Electoral Count Act, and to amend the Presidential Transition Act of 1963 to provide clear guidelines for when and to whom resources are provided by the Administrator of General Services for use in connection with the preparations for the assumption of official duties as President or Vice President. 1. Short title, etc (a) Short title This Act may be cited as the Electoral Count Reform and Presidential Transition Improvement Act of 2022 (b) Table of contents The table of contents of this Act is as follows: Sec. 1. Short title, etc. TITLE I—Electoral Count Reform Act Sec. 101. Short title. Sec. 102. Time for appointing electors. Sec. 103. Clarification with respect to vacancies in electoral college. Sec. 104. Certificate of ascertainment of appointment of electors. Sec. 105. Duties of the Archivist. Sec. 106. Meeting of electors. Sec. 107. Transmission of certificates of votes. Sec. 108. Failure of certificate of votes to reach recipients. Sec. 109. Clarifications relating to counting electoral votes. Sec. 110. Rules relating to joint meeting. Sec. 111. Severability. TITLE II—Presidential Transition Improvement Act Sec. 201. Short title. Sec. 202. Modifications to Presidential Transition Act of 1963. I Electoral Count Reform Act 101. Short title This title may be cited as the Electoral Count Reform Act of 2022 102. Time for appointing electors (a) In general Title 3, United States Code, is amended by striking sections 1 and 2 and inserting the following: 1. Time of appointing electors The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day. . (b) Election day Section 21 of title 3, United States Code, is amended by redesignating subsections (a) and (b) as paragraphs (2) and (3), respectively, and by inserting before paragraph (2) (as so redesignated) the following: (1) election day election day . (c) Conforming amendment The table of contents for chapter 1 1. Time of appointing electors. . 103. Clarification with respect to vacancies in electoral college Section 4 of title 3, United States Code, is amended by inserting enacted prior to election day by law 104. Certificate of ascertainment of appointment of electors (a) Determination Section 5 of title 3, United States Code, is amended to read as follows: 5. Certificate of ascertainment of appointment of electors (a) In general (1) Certification Not later than the date that is 6 days before the time fixed for the meeting of the electors, the executive of each State shall issue a certificate of ascertainment of appointment of electors, under and in pursuance of the laws of such State providing for such appointment and ascertainment enacted prior to election day. (2) Form of certificate Each certificate of ascertainment of appointment of electors shall— (A) set forth the names of the electors appointed and the canvass or other determination under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; (B) bear the seal of the State; and (C) contain at least one security feature, as determined by the State, for purposes of verifying the authenticity of such certificate. (b) Transmission It shall be the duty of the executive of each State— (1) to transmit to the Archivist of the United States, by the most expeditious method available, the certificate of ascertainment of appointment of electors; and (2) to transmit to the electors of such State, on or before the day on which the electors are required to meet under section 7, six duplicate-originals of the same certificate. (c) Treatment of certificate as conclusive (1) In general For purposes of section 15— (A) the certificate of ascertainment of appointment of electors issued pursuant to this section shall be treated as conclusive with respect to the determination of electors appointed by the State; and (B) any certificate of ascertainment of appointment of electors as required to be revised by any subsequent State or Federal judicial relief granted prior to the date of the meeting of electors shall replace and supersede any other certificates submitted pursuant to this section. (2) Determination of Federal questions The determination of Federal courts on questions arising under the Constitution or laws of the United States with respect to a certificate of ascertainment of appointment of electors shall be conclusive. (d) Venue and expedited procedure (1) In general Any action brought by an aggrieved candidate for President or Vice President that arises under the Constitution or laws of the United States with respect to the issuance of the certification required under section (a)(1), or the transmission of such certification as required under subsection (b), shall be subject to the following rules: (A) Venue The venue for such action shall be the Federal district court of the Federal district in which the State capital is located. (B) 3-judge panel Such action shall be heard by a district court of three judges, convened pursuant to section 2284 of title 28, United States Code, except that the court shall be comprised of two judges of the circuit court of appeals in which the district court lies and one judge of the district court in which the action is brought. (C) Expedited procedure It shall be the duty of the court to advance on the docket and to expedite to the greatest possible extent the disposition of the action, consistent with all other relevant deadlines established by this chapter and the laws of the United States. (D) Appeals Any appeal from the judgment of the panel convened under subparagraph (B) may be heard directly by the Supreme Court, pursuant to section 1253 of title 28, United States Code, on an expedited basis, so that a final order of the court on remand of the Supreme Court may occur on or before the day before the time fixed for the meeting of electors. (2) Rule of construction This subsection shall be construed solely to establish venue and expedited procedures in any action brought by an aggrieved candidate for President or Vice President as specified in this subsection that arises under the Constitution or laws of the United States. . (b) Executive of a State Section 21 of title 3, United States Code, as amended by section 102(b), is amended by striking paragraph (3) and inserting the following: (3) executive . (c) Conforming amendments (1) Section 9 of title 3, United States Code, is amended by striking annex to each of the certificates one of the lists of the electors annex to each of the certificates of votes one of the certificates of ascertainment of appointment of electors (2) The table of contents for chapter 1 5. Certificate of ascertainment of appointment of electors. . 105. Duties of the Archivist (a) In general Section 6 of title 3, United States Code, is amended to read as follows: 6. Duties of Archivist The certificates of ascertainment of appointment of electors received by the Archivist of the United States under section 5 shall— (1) be preserved for one year; (2) be a part of the public records of such office; and (3) be open to public inspection. . (b) Conforming amendment The table of contents for chapter 1 6. Duties of Archivist. . 106. Meeting of electors (a) Time for meeting Section 7 of title 3, United States Code, is amended— (1) by striking Monday Tuesday (2) by striking as the legislature of such State shall direct in accordance with the laws of the State enacted prior to election day (b) Clarification on sealing of certificates of votes Section 10 of such title is amended by striking the certificates so made by them the certificates of votes so made by them, together with the annexed certificates of ascertainment of appointment of electors, 107. Transmission of certificates of votes (a) In general Section 11 of title 3, United States Code, is amended to read as follows: 11 Transmission of certificates by electors The electors shall immediately transmit at the same time and by the most expeditious method available the certificates of votes so made by them, together with the annexed certificates of ascertainment of appointment of electors, as follows: (1) One set shall be sent to the President of the Senate at the seat of government. (2) Two sets shall be sent to the chief election officer of the State, one of which shall be held subject to the order of the President of the Senate, the other to be preserved by such official for one year and shall be a part of the public records of such office and shall be open to public inspection. (3) Two sets shall be sent to the Archivist of the United States at the seat of government, one of which shall be held subject to the order of the President of the Senate and the other of which shall be preserved by the Archivist of the United States for one year and shall be a part of the public records of such office and shall be open to public inspection. (4) One set shall be sent to the judge of the district in which the electors shall have assembled. . (b) Conforming amendment The table of contents for chapter 1 11. Transmission of certificates by electors. . 108. Failure of certificate of votes to reach recipients (a) In general Section 12 of title 3, United States Code, is amended— (1) by inserting , after the meeting of the electors shall have been held, When (2) by striking in December, after the meeting of the electors shall have been held, in December, (3) by striking or, if he be absent or, if the President of the Senate be absent (4) by striking secretary of State chief election officer of the State (5) by striking and list (6) by striking lodged with him lodged with such officer (7) by striking his duty the duty of such chief election officer of the State (8) by striking by registered mail by the most expeditious method available (b) Continued failure Section 13 of title 3, United States Code, is amended— (1) by inserting , after the meeting of the electors shall have been held, When (2) by striking in December, after the meeting of the electors shall have been held, in December, (3) by striking or, if he be absent or, if the President of the Senate be absent (4) by striking that list that certificate (c) Elimination of messenger's penalty (1) In general Title 3, United States Code, is amended by striking section 14. (2) Conforming amendment The table of contents for chapter 1 109. Clarifications relating to counting electoral votes (a) In general Section 15 of title 3, United States Code, is amended to read as follows: 15. Counting electoral votes in Congress (a) In general Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. (b) Powers of the President of Senate (1) Ministerial in nature Except as otherwise provided in this chapter, the role of the President of the Senate while presiding over the joint meeting shall be limited to performing solely ministerial duties. (2) Powers explicitly denied The President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors. (c) Appointment of tellers At the joint meeting of the Senate and House of Representatives described in subsection (a), there shall be present two tellers previously appointed on the part of the Senate and two tellers previously appointed on the part of the House of Representatives by the presiding officers of the respective chambers. (d) Procedure at joint meeting generally (1) In general The President of the Senate shall— (A) open the certificates and papers purporting to be certificates of the votes of electors appointed pursuant to a certificate of ascertainment of appointment of electors issued pursuant to section 5, in the alphabetical order of the States, beginning with the letter A; and (B) upon opening any certificate, hand the certificate and any accompanying papers to the tellers, who shall read the same in the presence and hearing of the two Houses. (2) Action on certificate (A) In general Upon the reading of each certificate or paper, the President of the Senate shall call for objections, if any. (B) Requirements for objections (i) Objections No objection shall be in order unless the objection— (I) is made in writing; (II) is signed by at least one-fifth of the Senators duly chosen and sworn and one-fifth of the Members of the House of Representatives duly chosen and sworn; and (III) states clearly and concisely, without argument, one of the grounds listed under clause (ii). (ii) Grounds for objections The only grounds for objections shall be as follows: (I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1). (II) The vote of one or more electors has not been regularly given. (C) Consideration of objections (i) In general When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision. (ii) Determination No objection may be sustained unless such objection is sustained by separate concurring votes of each House. (D) Reconvening When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted. No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of. (e) Rules for tabulating votes (1) Counting of votes (A) In general Except as provided in subparagraph (B)— (i) only the votes of electors who have been appointed under a certificate of ascertainment of appointment of electors issued pursuant to section 5, or who have legally been appointed to fill a vacancy of any such elector pursuant to section 4, may be counted; and (ii) no vote of an elector described in clause (i) which has been regularly given shall be rejected. (B) Exception The vote of an elector who has been appointed under a certificate of ascertainment of appointment of electors issued pursuant to section 5 shall not be counted if— (i) there is an objection which meets the requirements of subsection (d)(2)(B)(i); and (ii) each House affirmatively sustains the objection as valid. (2) Determination of majority If the number of electors lawfully appointed by any State pursuant to a certificate of ascertainment of appointment of electors that is issued under section 5 is less than the number of electoral votes entitled to be cast by the State, or if an objection the grounds for which are described in subsection (d)(2)(B)(ii)(I) has been sustained, the total number of electors appointed for the purpose of determining a majority of the whole number of electors appointed as required by the Twelfth Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom the objection was sustained. (3) List of votes by tellers; declaration of winner The tellers shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. . (b) Conforming amendment The table of contents for chapter 1 15. Counting electoral votes in Congress. . 110. Rules relating to joint meeting (a) Limit of debate in each House Section 17 of title 3, United States Code, is amended to read as follows: 17. Same; limit of debate in each House When the two Houses separate to decide upon an objection pursuant to section 15(d)(2)(C)(i) that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter— (1) all such objections and questions permitted with respect to such State shall be considered at such time; (2) each Senator and Representative may speak to such objections or questions five minutes, and not more than once; (3) the total time for debate for all such objections and questions with respect to such State shall not exceed two hours in each House; and (4) at the close of such debate, it shall be the duty of the presiding officer of each House to put the objections and questions to a vote without further debate. . (b) Parliamentary procedure Section 18 of title 3, United States Code, is amended by inserting under section 15(d)(2)(C)(i) motion to withdraw 111. Severability (a) In general Title 3, United States Code, is amended by inserting after section 21 the following new section: 22. Severability If any provision of this chapter, or the application of a provision to any person or circumstance, is held to be unconstitutional, the remainder of this chapter, and the application of the provisions to any person or circumstance, shall not be affected by the holding. . (b) Conforming amendment The table of contents for chapter 1 22. Severability. . II Presidential Transition Improvement Act 201. Short title This title may be cited as Presidential Transition Improvement Act 202. Modifications to Presidential Transition Act of 1963 (a) In general Section 3 of the Presidential Transition Act of 1963 ( 3 U.S.C. 102 (c) (1) Apparent successful candidates (A) In general For purposes of this Act, the apparent successful candidate (i) If all but one eligible candidate for the office of President and one eligible candidate for the office of Vice President, respectively, concede the election, then the candidate for each such office who has not conceded shall be the apparent successful candidate for each such office. (ii) If, on the date that is 5 days after the date of the election, more than one eligible candidate for the office of President has not conceded the election, then each of the remaining eligible candidates for such office and the office of Vice President who have not conceded shall be treated as the apparent successful candidates until such time as a single candidate for the office of President is treated as the apparent successful candidate pursuant to clause (iii) or clause (iv). (iii) If a single candidate for the office of President or Vice President is determined by the Administrator to meet the qualifications under subparagraph (B), the Administrator may determine that such candidate shall solely be treated as the apparent successful candidate for that office until such time as a single candidate for the office of President is treated as the apparent successful candidate pursuant to clause (iv). (iv) If a single candidate for the office of President or Vice President is the apparent successful candidate for such office under subparagraph (C), that candidate shall solely be treated as the apparent successful candidate for that office. (B) Interim discretionary qualifications On or after the date that is 5 days after the date of the election, the Administrator may determine that a single candidate for the office of President or Vice President shall be treated as the sole apparent successful candidate for that office pursuant to subparagraph (A)(iii) if it is substantially certain the candidate will receive a majority of the pledged votes of electors, based on consideration of the following factors: (i) The results of the election for such office in States in which significant legal challenges that could alter the outcome of the election in the State have been substantially resolved, such that the outcome is substantially certain. (ii) The certified results of the election for such office in States in which the certification is complete. (iii) The results of the election for such office in States in which there is substantial certainty of an apparent successful candidate based on the totality of the circumstances. (C) Mandatory qualifications (i) In general Notwithstanding subparagraph (A) or (B), a candidate shall be the sole apparent successful candidate for the office of President or Vice President pursuant to subparagraph (A)(iv) for purposes of this Act if— (I) the candidate receives a majority of pledged votes of electors of such office based on certifications by States of their final canvass, and the conclusion of any recounts, legal actions, or administrative actions pertaining to the results of the election for such office; (II) in the case where subclause (I) is not met, the candidate receives a majority of votes of electors of such office at the meeting and vote of electors under section 7 of title 3, United States Code; or (III) in the case where neither subclause (I) or (II) is met, the candidate is declared as the person elected to such office at the joint session of Congress under section 15 of title 3, United States Code. (ii) Clarification if State unable to certify election results or appoints more than one slate of electors For purposes of subclauses (I) and (II) of clause (i), if a State is unable to certify its election results or a State appoints more than one slate of electors, the votes of the electors of such State shall not count towards meeting the qualifications under such subclauses. (2) Period of multiple possible apparent successful candidates During any period in which there is more than one possible apparent successful candidate for the office of President— (A) the Administrator is authorized to provide, upon request, to each remaining eligible candidate for such office and the office of Vice President described in paragraph (1)(A)(ii) access to services and facilities pursuant to this Act; (B) the Administrator, in conjunction with the Federal Transition Coordinator designated under section 4(c) and the senior career employee of each agency and senior career employee of each major component and subcomponent of each agency designated under subsection (f)(1) to oversee and implement the activities of the agency, component, or subcomponent relating to the Presidential transition, shall make efforts to ensure that each such candidate is provided equal access to agency information and spaces as requested pursuant to this Act; (C) the Administrator shall provide weekly reports to Congress containing a brief summary of the status of funds being distributed to such candidates under this Act, the level of access to agency information and spaces provided to such candidates, and the status of such candidates with respect to meeting the qualifications to be the apparent successful candidate for the office of President or Vice President under subparagraph (B) or (C) of paragraph (1); and (D) if a single candidate for the office of President or Vice President is treated as the apparent successful candidate for such office pursuant to subparagraph (A)(iii) or (A)(iv) of paragraph (1), not later than 24 hours after such treatment is effective, the Administrator shall make available to the public a written statement that such candidate is treated as the sole apparent successful candidate for such office for purposes of this Act, including a description of the legal basis and reasons for such treatment based on the qualifications under subparagraph (B) or (C) of paragraph (1), as applicable. (3) Definition In this subsection, the term eligible candidate . (b) Conforming amendments The Presidential Transition Act of 1963 ( 3 U.S.C. 102 (1) in section 3— (A) in the heading, by striking presidents-elect and vice-presidents-elect apparent successful candidates (B) in subsection (a)— (i) in the matter preceding paragraph (1)— (I) by striking each President-elect, each Vice-President-elect each apparent successful candidate for the office of President and Vice President (as determined by subsection (c)) (II) by striking the President-elect and Vice-President-elect each such candidate (ii) in paragraph (1)— (I) by striking the President-elect, the Vice-President-elect the apparent successful candidate (II) by striking the President-elect or Vice-President-elect the apparent successful candidate (iii) in paragraphs (2), (3), (4), and (5), by striking the President-elect or Vice-President-elect the apparent successful candidate (iv) in paragraph (4)(B), by striking the President-elect, the Vice-President-elect, or the designee of the President-elect or Vice-President-elect the apparent successful candidate or their designee (v) in paragraph (8), in subparagraph (A)(v) and (B), by striking the President-elect the apparent successful candidate for the office of President (vi) in paragraph (10)— (I) by striking any President-elect, Vice-President-elect, or eligible candidate any apparent successful candidate or eligible candidate (II) by striking the President-elect and Vice President-elect the apparent successful candidates (C) in subsection (b)— (i) in paragraph (1), by striking the President-elect or Vice-President-elect, or after the inauguration of the President-elect as President and the inauguration of the Vice-President-elect as Vice President the apparent successful candidates, or after the inauguration of the apparent successful candidate for the office of President as President and the inauguration of the apparent successful candidate for the office of Vice President as Vice President (ii) in paragraph (2), by striking the President-elect, Vice-President-elect the apparent successful candidate (D) in subsection (d)— (i) in the first sentence, by striking Each President-elect Each apparent successful candidate for the office of President (ii) in the second sentence, by striking Each Vice-President-elect Each apparent successful candidate for the office of Vice-President (E) in subsection (e)— (i) in the first sentence, by striking Each President-elect and Vice-President-elect Each apparent successful candidate (ii) in the second sentence, by striking any President-elect or Vice-President-elect may be made upon the basis of a certificate by him or the assistant designated by him any apparent successful candidate may be made upon the basis of a certificate by the candidate or their designee (F) in subsection (f)— (i) in paragraph (1), by striking The President-elect Any apparent successful candidate for the office of President (ii) in paragraph (2), by striking inauguration of the President-elect as President and the inauguration of the Vice-President-elect as Vice President inauguration of the apparent successful candidate for the office of President as President and the inauguration of the apparent successful candidate for the office of Vice President as Vice President (G) in subsection (g), by striking In the case where the President-elect is the incumbent President or in the case where the Vice-President-elect is the incumbent Vice President In the case where an apparent successful candidate for the office of President is the incumbent President or in the case where an apparent successful candidate for the office of Vice President is the incumbent Vice President (H) in subsection (h)— (i) in paragraph (2)(B)(iv), by striking the President-elect or Vice-President-elect an apparent successful candidates (ii) in paragraph (3)(B)(iii), by striking the President-elect or Vice-President-elect an apparent successful candidates (I) in subsection (i)(3)(C)— (i) in clause (i), by striking the inauguration of the President-elect as President and the inauguration of the Vice-President-elect as Vice President the inauguration of the apparent successful candidate for the office of President as President and the inauguration of the apparent successful candidate for the office of Vice President as Vice President (ii) in clause (ii), by striking upon request of the President-elect or the Vice-President-elect upon request of the apparent successful candidate (2) in section 4— (A) in subsection (e)— (i) in paragraph (1)(B), by striking the President-elect and Vice-President-elect the apparent successful candidates (as determined by section 3(c)) (ii) in paragraph (4)(B), by striking the President-elect is inaugurated the apparent successful candidate for the office of President is inaugurated (B) in subsection (g)— (i) in paragraph (3)(A), by striking the President-elect the apparent successful candidate for the office of President (ii) in paragraph (3)(B)(ii)(III), by striking the President-elect the apparent successful candidate for the office of President (3) in section 5, in the first sentence, by striking Presidents-elect and Vice-Presidents-elect apparent successful candidates (as determined by section 3(c)) (4) in section 6— (A) in subsection (a)— (i) in paragraph (1)— (I) by striking The President-elect and Vice-President-elect Each apparent successful candidate (as determined by section 3(c)) (II) by striking the President-elect or Vice-President-elect the apparent successful candidate (ii) in paragraph (2), by striking The President-elect and Vice-President-elect Each apparent successful candidate (iii) in paragraph (3)(A), by striking inauguration of the President-elect as President and the Vice-President-elect as Vice President inauguration of the apparent successful candidate for the office of President as President and the apparent successful candidate for the office of Vice-President as Vice President (B) in subsection (b)(1)— (i) in the matter preceding subparagraph (A), by striking The President-elect and Vice-President-elect Each apparent successful candidate (ii) in subparagraph (A), by striking the President-elect or Vice-President-elect's the apparent successful candidate's (C) in subsection (c), by striking The President-elect and Vice-President-elect Each apparent successful candidate (5) in section 7(a)(1), by striking the President-elect and Vice President-elect the apparent successful candidates

Summary: Electoral Count Reform and Presidential Transition Improvement Act of 2022 This bill revises the process of casting and counting electoral votes for presidential elections. The bill also revises provisions related to the presidential transition process. The bill specifies that the choice of electors must occur in accordance with the laws of the state enacted prior to election day. Additionally, the bill identifies each state's governor (unless otherwise identified in the laws or constitution of a state in effect on election day) as responsible for submitting the certificate of ascertainment identifying the state's electors. Further, the bill provides for expedited judicial review for any action brought by an aggrieved presidential or vice-presidential candidate arising under the U.S. Constitution or U.S. laws with respect to the issuance or transmission of such a certificate. The bill revises the framework for the joint session of Congress to count electoral votes and make a formal declaration of which candidates have been elected President and Vice President. Among other changes, the bill (1) specifies that the role of the Vice President during the joint session shall be ministerial in nature, and (2) raises the objection threshold in Congress to at least one-fifth of the duly chosen and sworn members of both the House of Representatives and the Senate. The bill also revises the presidential transition process, including to (1) allow more than one candidate to receive federal transition resources under certain circumstances, and (2) require additional reporting by the General Services Administration.