[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] [[Page 487]] 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 [[Page 488]] 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 [[Page 489]] 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, [[Page 490]] 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 [[Page 491]] 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.