The Electoral Count Reform and Presidential Transition Improvement Act of 2022 – Welcome Reforms, but Is More Needed?

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Stephen Rolandi
October 21, 2024

With our 2024 quadrennial Presidential election to be held in a few weeks, and the meeting of the Electoral College scheduled to take place on December 17, 2024, there is a great deal of interest (and some would say, anxiety) to see who will succeed President Joseph R. Biden next January 20, 2025.

Congress passed on December 23, 2022 (and signed into law by President Biden on December 29, 2022 as Division “P” of the 2023 Consolidated Appropriations Act) the “Electoral Count Reform and Presidential Transition Improvement Act of 2022” (reference: S. 4573 of the 117^th Congress).

This new law took effect on December 29, 2022. It will apply, for the first time, to the certification of the 2024 Presidential Election results by the 119^th Congress, scheduled to meet on January 6, 2025 in Washington, DC.

The bill was introduced in Congress by Senator Susan Collins (R-ME) and Joe Manchin (D-West Virginia) in July of 2022 and had 17 co-sponsors in the Senate from both parties. The Act was intended to prevent a repeat of the chaos that followed on January 6, 2021 when President Trump’s refused to concede his election loss to Joseph Biden as well as the fake electors plot following the 2020 election. There was also a significant delay in the transition to the new Biden administration.

The new law represented a revision of the Electoral Count Act of 1887 (by way of background, the 1887 law was passed in response to the 1876 contested Presidential election and which was seriously flawed). The new law addressed issues as to when a transition to a new administration could begin, as well as the Vice President’s role as President of the Senate in certifying the Electoral College vote count.

Highlights of the 2022 Act

The new law includes multiple revisions to the voting, certification, counting and transition process:

State procedures

The Act identifies the governor (for the District of Columbia/Washington, DC, the City’s Mayor) as the responsible official for submitting the Certificates of Ascertainment (the official document that designates the state’s official electors for the election of the President and Vice President), unless specified by state law or constitution. In addition, a certificate that was revised by state or Federal court judgment before the meeting of the electors supersedes all previous certificates.

Further, states that designate their electors by popular vote can modify the period of voting only in the case of “extraordinary and catastrophic events.” Such a modification may only occur according to laws passed before the voting period.

The date on which electors convene to vote is also changed by this new law, to the “first Tuesday after the second Wednesday in December.” Previously, it was one day earlier.

Review of claims brought by candidates

An action brought by an aggrieved Presidential or Vice Presidential candidate is guaranteed an expedited review by the courts. The review by a three-judge judicial panel of the U.S. District Court is the state capital of the dispute. Any appeal from this court’s judgement shall be heard directly by the U.S.

Congressional proceedings

The new law clarifies the Vice President’s role in the counting of the electoral votes is “solely ministerial,” with no power to “determine, accept, reject or otherwise adjudicate or resolve disputes over the proper list of electors, the validity of electors, or the votes of electors.”

Most significantly, any objection raised by senators or representatives during the count of the electoral votes must be made in writing and signed by at least 20% of the members of the Senate and 20% of the House of Representatives. Previously, an objection required the signatures of only one (1) Senator and Representative. The Collins-Manchin law also limits the grounds by which an objection can be made to one of the following:

The electors of a given state were not lawfully certified, or
An elector’s vote was not “regularly given,” that is to say not cast pursuant to law

What needs to be pointed out about this provision in the new law is that if the challenge to a state’s electoral vote were successful, that state’s electoral vote would not be counted and the total number of electors would be reduced, as well as the number of electoral votes required for election (a majority of each chamber would be required to disqualify a state’s electoral vote).

For example, if Wisconsin’s electoral votes (currently 10) were successfully challenged, the total number of electoral votes to be counted would be reduced to 528 (538-10) and the new majority would be 265, not 270 required to elect the President and/or Vice President.

Transition Funding

The Act allows multiple “apparent successful candidates” to receive Federal presidential transition funds if more than one candidate has not conceded five (5) days after the election. The statute provides guidelines for the Administrator of the General Services Administration (GSA) to determine when and to whom funds should be released.

One other item worth mentioning here – and that is that Congress will receive enhanced security protections for the January 6, 2025 certification vote from the Federal Department of Homeland Security (DHS) and the US Secret Service.

Is more reform needed?

The Collins-Manchin law has been widely praised as a much needed reform for a process that had flaws in it, which became readily apparent following the 2020 election and the events of January 6, 2021.

However, some experts, such as Matthew Seligman of Stanford University’s Constitutional Law Center and retired Federal judge Lawrence Lessig, now a member of the faculty at Harvard University Law School. Their opinion is that the new law places greater reliance on vote counting procedures and election certification at the state, county and local levels. There is also no case law history for courts to rely on if there are disputes arising from elector certifications.

In my view, Senators Collins and Manchin deserve credit for reforming the old 1887 law. It remains to be seen how this new law will work when the new Congress meets in January 2025 to certify our presidential election. Time will tell.

Post script: For further reading:

“The Electoral Count Act and Presidential Elections,” Congressional Research Service, December 19, 2022
“The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act,” by Derek T. Muller,

Case Western Reserve University Law Review (2023)

“Much Needed Reform for the Electoral Count Act,” by Michael Waldman,

Brennan Center for Justice, New York University School of Law, December 23, 2022

William H. Rehnquist, Centennial Crisis: The Disputed Election of 1876 (2005)
Roy Morris, Jr., Fraud of the Century: Rutherford B. Hayes, Samuel Tilden and the Stolen Election of 1876 (2004)

Author: Stephen R. Rolandi retired in 2015 after serving with the State and City of New York. He holds BA and MPA degrees from New York University, and studied law at Brooklyn Law School. He teaches public finance and management as an Adjunct Professor of Public Administration at John Jay College of Criminal Justice (CUNY) and Pace University. Professor Rolandi is a Trustee of NECoPA; President-emeritus/Senior Advisor for ASPA’s New York Metropolitan Chapter and past Senior National Council Representative. He has served on many association boards, and is a frequent guest commentator on public affairs and political issues affecting the nation and New York State. You can reach him at: [email protected] or [email protected] or 914.441.3399 or 212.237.8000.

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