[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 113th Congress]
[House Document 112-161]
[The United States Constitution]
[From the U.S. Government Publishing Office, www.gpo.gov]
\3\ See article II, section 1 of the Constitution. The 12th
amendment to the Constitution was proposed to the legislatures of the
several States by the Eighth Congress on December 12, 1803, in lieu of
the original third paragraph of the first section of the second article,
and was declared in a proclamation of the Secretary of State, dated the
25th of September, 1804, to have been ratified by the legislatures of
three-fourths of the States. The dates of ratification were: North
Carolina, December 21, 1803; Maryland, December 24, 1803; Kentucky,
December 27, 1803; Ohio, December 30, 1803; Virginia, December 31, 1803;
Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New York,
February 10, 1804; New Jersey, February 22, 1804; Rhode Island, March
12, 1804; South Carolina, May 15, 1804; Georgia, May 19, 1804; New
Hampshire, June 15, 1804. Ratification was completed on June 15, 1804.
The amendment was subsequently ratified by Tennessee, July 27, 1804. The
amendment was rejected by Delaware, January 18, 1804; Massachusetts,
February 3, 1804; and by Connecticut at its session begun May 10, 1804.
Sec. 219. Meeting of the electors and transmission and
count of their votes.
The Electors shall meet in their respective states,
and vote by ballot for President and Vice-President, one of whom, at
least, shall not be an inhabitant of the same state with themselves;
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;--The 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;-- * * *
Sections 15-18 of title 3, 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 (III, 1961; Deschler, ch. 10,
Sec. 2.1). Under the law governing the proceedings, the two Houses
divide to consider an objection to the counting of any electoral vote or
``other question arising in the matter'' (3 U.S.C. 15-18; Jan. 6, 1969,
pp. 145-47; Jan. 6, 2001, p. 101; Jan. 6, 2005, pp. 198, 199), but only
when in writing and signed by both a Member and a Senator (Jan. 6, 2001,
p. 101; Jan. 6, 2005, p. 198). Examples of an ``other question arising
in the matter'' include: (1) an objection for lack of a quorum (Jan. 6,
2001, p. 101); (2) a motion that either House withdraw from the joint
session (Jan. 6, 2001, p. 101); and (3) an appeal from a ruling by the
presiding officer (Jan. 6, 2001, p. 101). Such questions are not
debatable in the joint session (3 U.S.C. 18; Jan. 6, 2001, p. 101). When
the two Houses have divided, a motion in the House to lay the objection
on the table is not in order (Jan. 6, 1969; pp. 169-72). A Vice
President-elect, as Speaker of the House or as a sitting Vice President,
has participated in the ceremonies (e.g., VI, 446; Jan. 6, 2005, p.
197). See Deschler, ch. 10 for further discussion. When addressing a
controversy 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 (3 U.S.C. 5) addressing a determination of controversy as to
the appointment of electors. 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)).
have such majority, then from the persons having the highest numbers not
exceeding three on the list of those voted for as President, the House
of Representatives shall choose immediately, by ballot, the President.
But in choosing the President, the votes shall be taken by states, the
representation from each State having one vote; a quorum for this
purpose shall consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary to a choice.
And if the House of Representatives shall not choose a President
whenever the right of choice shall devolve upon them, before the fourth
day of March next following, then the Vice-President shall act as
President, as in the case of the death or other constitutional
disability of the President. The person having the greatest number of
votes as Vice-President, shall be the Vice-President, if such number be
a majority of the whole number of Electors appointed, and if no person
have a majority, then from the two highest numbers on the list, the
Senate shall choose the Vice-President; a quorum for the purpose shall
consist of two-thirds of the whole number of Senators, and a majority of
the whole number shall be necessary to a choice. But no person
constitutionally ineligible to the Office of President shall be eligible
to that of Vice-President of the United States.
Sec. 220. The electoral count.
The electoral count occurs in
a joint session of the two Houses in the Hall of the House (III, 1819)
at 1 p.m. on the sixth day of January succeeding every meeting of
electors (3 U.S.C. 15). The Vice President, as President of the Senate
(or the President pro tempore in the Vice President's absence), presides
over the joint session (3 U.S.C. 15). The date of the count has been
changed by law as follows: Monday, January 7, 1957 (P.L. 84-436);
Monday, January 7, 1985 (P.L. 98-456); Wednesday, January 4, 1989 (P.L.
100-646); Thursday, January 9, 1997 (P.L. 104-296); Thursday, January 8,
2009 (P.L. 110-430); Friday, January 4, 2013 (P.L. 112-228).
Sec. 221. Elections of President and Vice President
by the House and Senate in certain cases.
* * * The person having the greatest
number of votes for President, shall be the President, if such number be
a majority of the whole number of Electors appointed; and if no person
Sec. 222. History of original provision for failure of
electoral college to choose.
The 20th amendment to the Constitution has
clarified some of the provisions of the 12th amendment. In 1801 (III,
1983), the House of Representatives chose a President under article II,
section 1, clause 3 (see Sec. 152a, supra), the constitutional provision
superseded by the 12th amendment.
Sec. 223. Occasions of election by House and Senate after
In 1825 the House elected a President under the 12th amendment
(III, 1985); and in 1837 the Senate elected a Vice President (III,