The certificate of ascertainment is an official document that identifies a state's appointed electors for president and vice-president, as well as the final vote counts for each candidate.

Competing Certificates of Ascertainment

A competing certificate of ascertainment is a situation which arises when multiple certificates of ascertainment are submitted to congress by different groups.

Overview

This scenario typically occurs when there is a disputed election outcome in a state, and different authorities or groups claim legitimacy in certifying the electoral votes. The competing certificates create a constitutional crisis that must be resolved by Congress during the counting of electoral votes.

Legal Framework

Pre-Reform Act (2022)

Under the Electoral Count Act, which was largely reformed by the Electoral Count Reform Act of 2022, when competing certificates are received, Congress must determine which certificate is valid. The process involves:

1. Joint Session Consideration: Both chambers of Congress meet to examine the competing certificates
2. Objection Process: Members of Congress can object to the acceptance of electoral votes
3. Separate Chamber Deliberation: If objections are sustained, each chamber deliberates separately
4. Resolution: The certificate is accepted only if both chambers agree to accept it

Governor’s Certificate as Tiebreaker

In cases where the two chambers of Congress cannot agree on which return to accept, the certificate of ascertainment issued by the state’s governor serves as the tiebreaker.

Post-Reform Act (2022)

The Electoral Count Reform Act of 2022 (ECRA) clarified and narrowed the procedures around competing slates to prevent ambiguity and abuse:

• Exclusive Authority: Only a single, lawful slate certified by a state’s governor is recognized under federal law, unless a court order rules otherwise.
• Judicial Review: Federal courts are empowered to resolve disputes about the lawful slate of electors, prior to the electoral count.
• Elimination of Governor’s Tiebreaker: The ECRA removes the ambiguous “tiebreaker” provision and replaces it with a clear rule that defers to judicial resolution or the certification recognized under state and federal law.

The ECRA aims to ensure that the process of determining the valid slate of electors is clear, consistent, and less prone to manipulation or confusion, thereby strengthening the integrity of the electoral process. This was done in response to the false electors plot and the Eastman memos.