[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 Printing Office, www.gpo.gov]


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  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 and repeated ballots 
  in the House. 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, p ____. 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

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  second Wednesday in December at a place designated by the State 
  legislature. 3 USC Sec. 7. The electors prepare certified lists of all 
  persons voted for as President and 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. ---- (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 rule I clause 12, the Speaker may declare a recess in 
  connection with the joint session. He may decline to recognize for 
  one-minute speeches

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  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 his absence, 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.
      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, p ____.
      Where 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.

                                 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. An 
  objection not signed by a Senator is invalid. 107-1, Jan. 6, 2001, p 
  ____. In the event that a timely objection in proper form is raised in 
  connection with the count,

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  the joint session divides, and the objection is considered by each 
  House in separate session. Deschler Ch 10 Sec. 3.6. The Act of 1887 
  prescribes the procedure to be followed in debate after the two Houses 
  have separated. 3 USC Sec. 17. 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.

                   Other Questions Arising in the Matter

      In addition to the joint session's dividing to consider an 
  objection to the counting of any electoral vote, it 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 ____. 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, of determining 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 and 2002, 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 his 
  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 mat

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  ters 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.