[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 10. Presidential Elections; Electoral College]
[§ 1. In General; Electoral Certificates]
[From the U.S. Government Publishing Office, www.gpo.gov]
[Page 1559-1563]
CHAPTER 10
Presidential Elections; Electoral College
Sec. 1. In General; Electoral Certificates
Under the U.S. Constitution, both the House and Senate formally
participate in the process by which the President and Vice President
are elected. Congress is directed by the 12th amendment to receive and,
in joint session, count the electoral votes certified by the states.
And if no candidate receives a majority of the electoral vote, the
House of Representatives is directed to elect the President, while the
Senate is directed to elect the Vice President.(1)
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1. In the Presidential election of 1800, the electors produced a tie
vote by casting an equal number of votes for Thomas Jefferson
and Aaron Burr. Thus the election had to be determined by the
House of Representatives, which ultimately voted for Jefferson.
See 3 Hinds' Precedents Sec. 1931. For a general discussion of
early electoral-count procedures, see 3 Hinds' Precedents
Sec. Sec. 1911-1980 and 6 Cannon's Precedents Sec. Sec. 438-
446.
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This method of selecting a President, later to become known as the
``electoral college,'' came about as the result of a compromise after
lengthy debate at the Constitutional Convention of 1787. The debate
centered on whether the President should be chosen by popular vote, by
the Congress, or by some other method. Election by direct popular vote
was rejected because it was believed that the people would have
insufficient knowledge of the various candidates, and because it was
assumed that the people would be unable to agree on a single candidate.
A plan that would give Congress the power to select the President was
also rejected, because of its potential threat to executive
independence. Finding itself in disagreement on both plans, the
convention adopted a compromise under which each state was given the
power to appoint electors to be chosen in a manner specified by each
state legislature. The electors in each state, who were to be equal to
the total number of that state's Representatives and Senators, would
then meet and cast votes for President and Vice President.
Historically, the counting of electoral votes has been for the most
part a mere formality, because the result of the electoral vote has
almost invariably been the same as the result of the popular
vote.(2)
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2. There have been rare instances in which the result of the electoral
vote has differed from the result of the popular vote. For
example, in the Hayes-Tilden election of 1876, determinations
by the House and Senate with respect to certain disputed
electoral votes resulted in the election of Hayes, although
Tilden had received a majority of the popular vote. See 3
Hinds' Precedents Sec. Sec. 1953-1956.
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The electoral vote has generally followed the popular vote because
electors came to be chosen merely as representatives of the political
parties and because the state legislatures adopted a unit-rule system
under which all of a state's electoral votes are to be cast for the
party which wins a plurality of popular votes statewide.
The 12th amendment states in part:
The Electors shall meet in their respective states, and vote by
ballot for President and Vice-President . . . they shall name in
their ballots the person voted for as President, and in distinct
ballots the person voted for as Vice President, and they shall make
distinct lists of all persons voted for as President, and of all
persons voted for as Vice-President, and the number of votes for
each, which lists they shall sign and certify, and transmit sealed
to the seat of the government of the United States, directed to the
President of the Senate; [t]he President of the Senate shall, in
presence of the Senate and House of Representatives, open all the
certificates and the votes shall then be counted.
On the sixth day of January after the electors of the several
states have met to cast votes for President and Vice President, the
Congress, in accordance with the provisions of law,(3)
convenes in joint session,(4) the Senate and House of
Representatives meeting in the Hall of the House, to exercise its
constitutional responsibility for counting the electoral vote.
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3. 3 USC Sec. 15.
4. See Sec. 2.4, infra.
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At one o'clock in the afternoon on that day, the joint session of
the two Houses is called to order by the President of the
Senate,(5) the individual designated by statute
(6) to serve as the joint session's presiding officer.
Thereupon, the tellers,(7) who have previously been
appointed on the part of each House,(8) take their
respective places at the Clerk's desk. According to the alphabetical
order of the states, all the previously transmitted certificates and
papers purporting to be certificates of votes given by the electors are
then opened by the President of the Senate and handed to the
tellers.(9) Each certificate so received is read by the
tellers in
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the presence and hearing of the two Houses. After the reading of each
certificate, the President of the Senate calls for objections, if any.
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5. See Sec. 2.5, infra.
6. 3 USC 15.
7. See Sec. Sec. 3.1-3.4, infra, for appointment of tellers.
8. See Sec. 2.1, infra.
9. See Sec. 2.1, infra.
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In the event that a written objection should be raised, properly
signed by at least one Senator and one Member of the House of
Representatives, and when all objections so made to any vote or paper
from a state have been received and read, the joint session divides,
the Senate repairing to the Senate Chamber, and all such objections are
submitted to and considered by each House meeting in separate
session.(10)
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10. See Sec. 3.6, infra.
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Pursuant to the provisions of the U.S. Code, which govern the
procedures in both Houses in the event they divide to consider an
objection, each Senator and Representative may speak to such objection
for five minutes, and not more than once; and after such debate has
lasted two hours, the presiding officer of each House is required to
put the main question without further debate.(11) When the
two Houses have voted, they immediately again meet in joint session,
and the presiding officer then announces the decision on the objections
submitted.
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11. 3 USC Sec. Sec. 15, 17.
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Once all objections to any certificate or paper from a state have
been so decided, or immediately following the reading of such
certificate or paper when no objections thereto are raised, the tellers
make a list of the votes as they appear from the
certificates.(12~) The result of the count is then delivered
to the President of the Senate who thereupon announces the state of the
vote. This announcement is deemed by law a sufficient declaration of
the persons, if any, elected President and Vice President of the United
States. The announcement, together with a list of the votes, is then
entered in the Journals of the two Houses.(13)
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12. See 3 USC Sec. 15.
13. 3 USC Sec. 15.
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In addition to its responsibilities in ascertaining and counting
the electoral votes cast for President and Vice President, the Congress
has been delegated a further constitutional duty relative to the
selection of the Vice President. Pursuant to section 2 of the 25th
amendment to the U.S. Constitution, whenever there is a vacancy in the
Office of Vice President the President nominates a Vice President to
take office upon confirmation by a majority vote of both
Houses.(14)
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14. See Sec. Sec. 4.1-4.3, infra.
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The House and Senate also have important responsibilities
[[Page 1562]]
under the 20th and 25th amendments of the U.S. Constitution with
respect to Presidential succession and disability. The 20th amendment
sets forth the procedure to be followed when the President-elect and
Vice President-elect fail to qualify at the commencement of their
terms. Congress also has the duty, under the 25th amendment, of
determining disputes as to Presidential
disability. -------------------
Transmittal and Presentation of Certificates
Sec. 1.1 Copies of the certificates identifying the electors appointed
in a state forwarded by the Governor of each state to the
Administrator of General Services are, pursuant to 3 USC Sec. 6,
transmitted in turn to the House; on one occasion, where a
certificate was received on the day reserved for the counting of
the electoral votes, the Speaker, in order that the receipt of the
certificate would appear in the Record before the proceedings of
the joint session to count the electoral votes, laid the
communication before the House at the beginning of the session.
On Jan. 6, 1961,(15~) the Speaker (16) laid
before the House the following communication which was read and, with
accompanying papers, referred to the Committee on House Administration:
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15. 107 Cong. Rec. 288, 87th Cong. 1st Sess.
16. Sam Rayburn (Tex.).
General Services
Administration,
Washington, D.C., January 6, 1961.
Hon. Sam Rayburn,
Speaker of the House of Representatives, Washington, D.C.
Dear Mr. Speaker: Transmitted herewith is a copy of the
certificate of ascertainment received today from the State of
Hawaii, in conformity with the final clause of section 6, title
3, United States Code.
Sincerely yours,
Franklin Floete,
Administrator.
State of Hawaii.
To the Administrator of General Services, Pursuant to the
Laws of the United States.
I, William F. Quinn, Governor of the State of Hawaii, do
hereby certify that the returns of votes cast for electors of
President and Vice President of the United States of America,
for the State of Hawaii, at an election held therein for that
purpose, on the Tuesday after the first Monday in November, in
the year of our Lord 1960, agreeably to the provisions of the
laws of the said State, and in conformity with the Constitution
and laws of the United States, for the purpose of giving in
their votes for President and Vice President of the United
States, for the respective terms prescribed by the Constitution
of the United States, to begin on the 20th day of January in
the year of
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our Lord 1961, were, ascertained by judgment of the circuit
court of the first judicial circuit, State of Hawaii, in
proceedings entitled Herman T. F. Lum et al., v. Gavien A. Bush
et al. (Civil No. 7029), entered on the 30th day of December
A.D. 1960, and that the list of persons voted for and the
number of votes cast for each, pursuant to said judgment,
respectively, is as follows:
Republican Party: Gavien A. Bush, 92,295; J. Howard
Worrall, 92,295; O. P. Soares, 92,295.
Democratic Party: William H. Heen, 92,410; Delbert E.
Metzger, 92,410; Jennie Wilson, 92,410.
And I further certify that: William H. Heen, Delbert E.
Metzger, and Jennie Wilson were appointed electors of President
and Vice President of the United States of America, for the
State of Hawaii, at said election.
Given under my hand and the seal of the State, this 4th day
of January, in the year of our Lord 1961.
William F. Quinn,
Governor of Hawaii.
Sec. 1.2 Where certificates of electoral votes had been received from
different slates of electors from a state, and each slate purported
to be the duly appointed electors from that state, the Vice
President presented the certificates, with all attached papers, in
the order in which they had been received.
On Jan. 6, 1961,(17) during proceedings in the joint
session of the two Houses incident to the opening of the certificates
and ascertaining and counting of the votes of the electors of the
several states for President and Vice President, the presiding officer
(18) handed to the tellers, in the order in which they had
been received, certificates of electoral votes, with all attached
papers thereto, from different slates of electors from the State of
Hawaii. Without objection, the Chair instructed the tellers to count
the votes of those electors named in the certificate of the Governor of
Hawaii dated Jan. 4, 1961 (discussed more fully in Sec. 3.5, infra).
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17. 107 Cong. Rec. 288-91, 87th Cong. 1st Sess.
18. Richard M. Nixon (Calif.).
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