[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 24. Electoral Counts; Selection of President and Vice President]
[From the U.S. Government Publishing Office, www.gpo.gov]
CHAPTER 24
ELECTORAL COUNTS; SELECTION OF PRESIDENT AND VICE PRESIDENT
HOUSE PRACTICE
Sec. 1. In General; Election of President and Vice President
Sec. 2. Joint Session to Count the Electoral Vote
Sec. 3. Consideration of Certificates of Electors
Sec. 4. Presidential Disability; Filling Vice Presidential Vacancies
Research References
U.S. Const. amend. XII
3 Hinds Sec. Sec. 1911-1980
6 Cannon Sec. Sec. 438-441
Deschler Ch 10
Manual Sec. Sec. 219-223
Sec. 1 . In General; Election of President and Vice President
Both the House and Senate formally participate in the process by
which the President and Vice President are elected. Congress is
directed by the Constitution to receive, and in joint session to
count, the electoral votes certified by the states. If no candidate
receives a majority of the electoral vote, the House is directed to
elect the President, and the Senate is directed to elect the Vice
President. U.S. Const. amend. XII; Manual Sec. 219.
The House has on two occasions, in 1801 and 1825, proceeded to
elect a President where no candidate had a majority of electoral
votes. 3 Hinds Sec. Sec. 1983, 1985. Both Thomas Jefferson and John
Quincy Adams were chosen after prolonged debate in the House, and, in
the case of Adams, after repeated ballots. Under both the original
constitutional provision and the 12th amendment, balloting was by
states, with each state having one vote.
There have been instances in which the result of the electoral
vote has differed from the result of the popular vote. 3 Hinds
Sec. Sec. 1953-1956; 107-1, Jan. 6, 2001, pp 115, 136. Generally,
however, the electoral vote has followed the popular vote because of
the manner in which electors are chosen under state law. Deschler Ch
10 Sec. 1.
Under the procedures governing the electoral count (as enacted in
1887 and codified in chapter 1 of title 3 of the United States Code),
certificates identifying the electors are prepared and transmitted to
the Archivist. 3 USC Sec. 6. The electors of each state meet and vote
on the first Monday after the second Wednesday in December at a place
designated by the state legislature. 3 USC Sec. 7. The electors
prepare certified lists of all persons receiving votes for President
or Vice President. The certificates are transmitted to the seat of
government and directed to the President of the Senate. U.S. Const.
amend. XII; 3 USC Sec. Sec. 8-11.
Under earlier procedure (before the Act of 1887), bills relating
to the electoral vote count were considered of high constitutional and
parliamentary privilege. 3 Hinds Sec. 2578. Resolutions relating to
the method of examining the electoral votes, or to procedural
irregularities or fraud in connection therewith, also were considered
as privileged. 3 Hinds Sec. Sec. 2573, 2576, 2577. The procedures
established in the Act of 1887 rendered these precedents largely
obsolete. 3 USC Sec. Sec. 1-19.
When addressing a dispute over the election of President and Vice
President in the state of Florida, the Supreme Court indicated its
view of a section of the statute addressing a state's ability to
determine ``controversy or contest'' as to the appointment of
electors. 3 USC Sec. 5; Bush v. Palm Beach County Canvassing Bd., 531
U.S. 70 (2000). Ultimately, the Supreme Court found that the Florida
Supreme Court violated the Equal Protection Clause of the 14th
amendment by ordering certain counties to conduct manual recounts of
the votes for President and Vice President without establishing
standards for those recounts. Bush v. Gore, 531 U.S. 98 (2000).
Sec. 2 . Joint Session to Count the Electoral Vote
The electoral count occurs in a joint session of the two Houses in
the Hall of the House at 1 p.m. on the sixth day of January succeeding
every meeting of electors (or an alternate day set by law). 3 USC
Sec. 15; Manual Sec. 220; 3 Hinds Sec. 1819; Deschler Ch 10 Sec. 2.
Sections 15-18 of title 3 of the United States Code prescribe in
detail the procedure for the count. Nevertheless, the two Houses
traditionally adopt a concurrent resolution providing for the meeting
in joint session to count the vote, for the appointment of tellers,
and for the declaration of the state of the vote. 3 Hinds Sec. 1961;
Deschler Ch 10 Sec. 2.1. This concurrent resolution is privileged. 3
Hinds Sec. Sec. 2573-2577. Sections 15-18 of title 3 of the United
States Code are in effect joint rules of the two Houses for the
occasion and govern the procedures both in the joint session and in
each House in the event the two Houses divide to consider an
objection. Deschler Ch 10 Sec. 2.6.
Under clause 12 of rule I, the Speaker may declare a recess in
connection with the joint session. The Speaker may decline to
recognize for one-minute speeches or extensions of remarks before
recessing for the joint session. Deschler Ch 10 Sec. 2.3.
Sec. 3 . Consideration of Certificates of Electors
Generally
A joint session to count the electoral votes is presided over by
the President of the Senate. 3 USC Sec. 15. In the absence of the
President of the Senate, the President pro tempore of the Senate
presides and calls the session to order. Deschler Ch 10 Sec. 2.5.
No debate is allowed in the joint session. 3 USC Sec. 18; Manual
Sec. 220.
Counting of Certificates
The electoral votes are counted by tellers who have been appointed
on the part of the House by the Speaker and on the part of the Senate
by the Vice President. Deschler Ch 10 Sec. Sec. 3.1-3.4.
The certificates and other papers relating to the electoral count
are presented and acted on in alphabetical order by states. 3 USC
Sec. 15. Where more than one set of certificates have been received
from a state, and each set purports to be the duly appointed electors
from that state, the Vice President presents the certificates, with
all attached papers, in the order in which they have been received.
Deschler Ch 10 Sec. 3.5. If there are conflicting electoral
certificates from the same state, the two Houses during the joint
session may, by unanimous consent, determine which certificate is to
be accepted as valid. The tellers may then be directed to count the
votes in the certificate deemed valid. Deschler Ch 10 Sec. 3.5.
The certificates of votes given by the electors are opened by the
President of the Senate and handed to the tellers, who read them in
the presence and hearing of the two Houses. Deschler Ch 10 Sec. 1.
Traditionally, the reading of each certificate is dispensed with by
unanimous consent after the first state has been read. However, on one
occasion, no attempt was made to dispense with the reading of the
certificates. On that occasion, the tellers read only a sufficient
part of each certificate to reveal that it was signed by the pertinent
electors, duly attested, regular in form, and authentic. Manual
Sec. 220; 107-1, Jan. 6, 2001, pp 101-15.
Objections
An objection to the counting of any electoral vote must be in
writing and signed by a Member and a Senator. 3 USC Sec. 15; 109-1,
Jan. 6, 2005, p 198. An objection not signed by a Senator is invalid.
107-1, Jan. 6, 2001, p 104; 115-1, Jan. 6, 2017, p__. Objections are
not debatable in the joint session. 3 U.S.C. Sec. 18; 107-1, Jan. 6,
2001, p 104; 115-1, Jan. 6, 2017, p__. In the event that a timely
objection in proper form is raised in connection with the count, the
joint session divides, and the objection is considered by each House
in separate session. Deschler Ch 10 Sec. 3.6; 109-1, Jan. 6, 2005, p
199. The Act of 1887 prescribes the procedure to be followed in debate
after the two Houses have separated. 3 USC Sec. 17. On only two
occasions (in 1969 and 2005) has an objection been perfected,
requiring the two Houses to separate and consider the objection
pursuant to the Act of 1877. 91-1, Jan. 6, 1969, p 146; 109-1, Jan. 6,
2005, p 199. In the House a motion to lay the objection on the table
is not in order. Deschler Ch 10 Sec. 3.7. In one instance the Senate
agreed by unanimous consent to modify the terms set by the statute
with respect to the division of time for debate. Deschler Ch 10
Sec. 3.8.
If either the House or the Senate rejects the objection, the
presiding officer of the joint session directs the tellers to record
the votes as submitted. Deschler Ch 10 Sec. 3.6; 109-1, Jan. 6, 2005,
p 242.
Other Questions Arising in the Matter
In addition to the joint session dividing to consider an objection
to the counting of any electoral vote, the joint session divides to
consider an ``other question arising in the matter.'' 3 USC
Sec. Sec. 15-18; Manual Sec. 220. Such a question also must be in
writing and signed by both a Member and a Senator. Manual Sec. 220;
107-1, Jan. 6, 2001, p 104. Examples of an ``other question arising in
the matter'' include: (1) an objection for lack of a quorum; (2) a
motion that either House withdraw from the joint session; and (3) an
appeal from a ruling by the presiding officer. Manual Sec. 220. Such
questions are not debatable in the joint session. 3 USC Sec. 18.
Sec. 4 . Presidential Disability; Filling Vice Presidential Vacancies
In addition to its responsibilities in ascertaining and counting
the electoral votes cast for President and Vice President, Congress
has the duty under the Constitution to resolve disputes as to
Presidential disability. U.S. Const. amend. XXV Sec. Sec. 3, 4.
Messages relating to Presidential incapacity are laid before the
House. In 1985, 2002, and 2007, the Speaker laid before the House two
communications from the President of the United States (1) advising of
the President's temporary incapacity to discharge the constitutional
powers and duties of the Office of President and directing that the
Vice President discharge those duties in his stead and (2)
subsequently advising of the President's determination that he was
able to resume those powers and duties. Manual Sec. 256.
The House and Senate also act on the nomination of a Vice
President to fill a vacancy. The Constitution provides that in such
cases the President shall nominate a Vice President who shall take
office upon confirmation by a majority vote of both Houses. U.S.
Const. amend. XXV Sec. 2. Messages from the President transmitting the
nomination of a Vice President under this provision are laid before
the House by the Speaker. The nomination is referred to the Committee
on the Judiciary, which has jurisdiction over matters relating to
Presidential succession. Deschler Ch 10 Sec. Sec. 4.1, 4.2. The House
and Senate consider the nomination by acting separately on simple
resolutions. Deschler Ch 10 Sec. 4.3.