CHAPTER 10 Presidential Elections; Electoral College § 1. In General; Electoral Certificates § 2. Joint Sessions to Count Electoral Votes § 3. Counting Votes; Objections to Count § 4. Presidential Nominations for Vice President INDEX TO PRECEDENTS Certificates ascertaining electors Joint session to count electoral votes generally, see § 3.5 —Cont. transmittal of, to the House, § 1.l recesses in connection with, § § 2.2, 2.3 Certificates of electoral Votes statutory procedures relative to, § 2.6 conflicts relative to, § 3.5 Presidential nominations for Vice objections to vote count, § 3.6 President transmittal of, to the House, §§ 1.1 et confirmation of, § 4.3 seq. referral of, to committee, § 4.2 Joint session to count electoral votes transmission of, by message, § 4.1 concurrent resolution providing for, Tellers to count electoral votes § 2.1 appointment of, in the House, § § 3.1, convening of, § 2.4 3.2 division of, to consider objections, § 3.6 appointment of, in the Senate, § 3.4 presiding officer for, § 2.5 substitution for, in the House, § 3.3 Commentary and editing by John R. Graham, Jr., J.D. and Roy Miller, LL.B. 1557 Presidential Elections; Electoral College § 1. In General; Electoral whether the President should be Certificates chosen by popular vote, by the Congress, or by some other meth- Under the U.S. Constitution, od. Election by direct popular vote both the House and Senate for- was rejected because it was be- mally participate in the process by lieved that the people would have which the President and Vice insufficient knowledge of the var- President are elected. Congress is ious candidates, and because it directed by the 12th amendment was assumed that the people to receive and, in joint session, would be unable to agree on a sin- count the electoral votes certified gle candidate. A plan that would by the states. And if no candidate give Congress the power to select receives a majority of the electoral the President was also rejected, vote, the House of Representatives because of its potential threat to is directed to elect the President, executive independence. Finding while the Senate is directed to itself in disagreement on both elect the Vice President.(1) plans, the convention adopted a This method of selecting a compromise under which each President, later to become known state was given the power to ap- as the ‘‘electoral college,’’ came point electors to be chosen in a about as the result of a com- manner specified by each state promise after lengthy debate at legislature. The electors in each the Constitutional Convention of state, who were to be equal to the 1787. The debate centered on total number of that state’s Rep- resentatives and Senators, would 1. In the Presidential election of 1800, then meet and cast votes for the electors produced a tie vote by President and Vice President. casting an equal number of votes for Historically, the counting of Thomas Jefferson and Aaron Burr. electoral votes has been for the Thus the election had to be deter- mined by the House of Representa- most part a mere formality, be- tives, which ultimately voted for Jef- cause the result of the electoral ferson. See 3 Hinds’ Precedents vote has almost invariably been § 1931. For a general discussion of the same as the result of the pop- early electoral-count procedures, see ular vote.(2) 3 Hinds’ Precedents §§ 1911–1980 and 6 Cannon’s Precedents §§ 438– 2. There have been rare instances in 446. which the result of the electoral vote 1559 Ch. 10 § 1 DESCHLER’S PRECEDENTS The electoral vote has generally states have met to cast votes for followed the popular vote because President and Vice President, the electors came to be chosen merely Congress, in accordance with the as representatives of the political provisions of law,(3) convenes in parties and because the state leg- joint session,(4) the Senate and islatures adopted a unit-rule sys- House of Representatives meeting tem under which all of a state’s in the Hall of the House, to exer- electoral votes are to be cast for cise its constitutional responsi- the party which wins a plurality bility for counting the electoral of popular votes statewide. vote. The 12th amendment states in At one o’clock in the afternoon part: on that day, the joint session of The Electors shall meet in their re- the two Houses is called to order spective states, and vote by ballot for by the President of the Senate,(5) President and Vice-President . they shall name in their ballots the person the individual designated by stat- voted for as President, and in distinct ute (6) to serve as the joint ses- ballots the person voted for as Vice sion’s presiding officer. There- President, and they shall make distinct upon, the tellers,(7) who have pre- lists of all persons voted for as Presi- dent, and of all persons voted for as viously been appointed on the ( ) Vice-President, and the number of part of each House, 8 take their votes for each, which lists they shall respective places at the Clerk’s sign and certify, and transmit sealed to desk. According to the alphabet- the seat of the government of the United States, directed to the Presi- ical order of the states, all the dent of the Senate; [t]he President of previously transmitted certificates the Senate shall, in presence of the and papers purporting to be cer- Senate and House of Representatives, tificates of votes given by the elec- open all the certificates and the votes shall then be counted. tors are then opened by the Presi- dent of the Senate and handed to On the sixth day of January the tellers.(9) Each certificate so after the electors of the several received is read by the tellers in has differed from the result of the 3. 3 USC § 15. popular vote. For example, in the 4. See § 2.4, infra. Hayes-Tilden election of 1876, deter- minations by the House and Senate 5. See § 2.5, infra. with respect to certain disputed elec- 6. 3 USC 15. toral votes resulted in the election of 7. See § § 3.1–3.4, infra, for appoint- Hayes, although Tilden had received ment of tellers. a majority of the popular vote. See 3 8. See § 2.1, infra. Hinds’ Precedents §§ 1953–1956. 9. See § 2.1, infra. 1560 PRESIDENTIAL ELECTIONS; ELECTORAL COLLEGE Ch. 10 § 1 the presence and hearing of the been so decided, or immediately two Houses. After the reading of following the reading of such cer- each certificate, the President of tificate or paper when no objec- the Senate calls for objections, if tions thereto are raised, the tell- any. ers make a list of the votes as In the event that a written ob- they appear from the certifi- jection should be raised, properly cates.(12) The result of the count is signed by at least one Senator and then delivered to the President of one Member of the House of Rep- the Senate who thereupon an- resentatives, and when all objec- nounces the state of the vote. This tions so made to any vote or paper announcement is deemed by law a from a state have been received sufficient declaration of the per- and read, the joint session divides, sons, if any, elected President and the Senate repairing to the Senate Vice President of the United Chamber, and all such objections States. The announcement, to- are submitted to and considered gether with a list of the votes, is by each House meeting in sepa- then entered in the Journals of rate session.(10) the two Houses.(13) Pursuant to the provisions of In addition to its responsibil- the U.S. Code, which govern the ities in ascertaining and counting procedures in both Houses in the the electoral votes cast for Presi- event they divide to consider an objection, each Senator and Rep- dent and Vice President, the Con- resentative may speak to such ob- gress has been delegated a further jection for five minutes, and not constitutional duty relative to the more than once; and after such selection of the Vice President. debate has lasted two hours, the Pursuant to section 2 of the 25th presiding officer of each House is amendment to the U.S. Constitu- required to put the main question tion, whenever there is a vacancy without further debate.(11) When in the Office of Vice President the the two Houses have voted, they President nominates a Vice Presi- immediately again meet in joint dent to take office upon confirma- session, and the presiding officer tion by a majority vote of both then announces the decision on Houses.(14) the objections submitted. The House and Senate also Once all objections to any cer- have important responsibilities tificate or paper from a state have 12. See 3 USC § 15. 10. See § 3.6, infra. 13. 3 USC § 15. 11. 3 USC § § 15, 17. 14. See §§ 4.1–4.3, infra. 1561 Ch. 10 § 1 DESCHLER’S PRECEDENTS under the 20th and 25th amend- On Jan. 6, 1961,(15) the Speak- ments of the U.S. Constitution er (16) laid before the House the with respect to Presidential suc- following communication which cession and disability. The 20th was read and, with accompanying amendment sets forth the proce- papers, referred to the Committee dure to be followed when the on House Administration: President-elect and Vice Presi- GENERAL SERVICES ADMINISTRATION, dent-elect fail to qualify at the Washington, D.C., January 6, 1961. commencement of their terms. Hon.