[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Electoral Counts - Selection of President and Vice President]
[From the U.S. Government Printing Office, www.gpo.gov]
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ELECTORAL COUNTS--SELECTION OF PRESIDENT AND VICE PRESIDENT
Sec. 1. In General; Election of President by House
Sec. 2. Joint Sessions
Sec. 3. Consideration and Voting
Sec. 4. Presidential Disability; Filling Vice Presidential Vacancies
Research References
3 Hinds Secs. 1911-1980
6 Cannon Secs. 438-441
3 Deschler Ch 10
U.S. Const. amend. XII
Sec. 1 . In General; Election of President by House
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, 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, while 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 Secs. 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 rare instances in which the result of the
electoral vote has differed from the result of the popular vote. See,
for example, 3 Hinds Secs. 1953-1956. 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 electoral college system, 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. Certificates
identifying the electors are prepared and transmitted pursuant to
statute (3 USC Sec. 6).
Under earlier procedure bills relating to the electoral vote count
were considered of high constitutional and parliamentary privilege. 3
Hinds
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Sec. 2578. Resolutions relating to the method of examining the
electoral votes (3 Hinds Sec. 2573) or to procedural irregularities (3
Hinds Sec. 2576) or fraud (3 Hinds Sec. 2577) in connection therewith,
were also considered as privileged. Following enactment in 1948 of a
law (3 USC Secs. 15-18) governing the counting of electoral votes in
Congress, these precedents became largely obsolete since a mechanism
exists to address those procedures.
Sec. 2 . Joint Sessions
The House and Senate meet in joint session to count the electoral
vote. 87-1, Jan. 6, 1961, p 277; 93-1, Jan. 3, 1973, p 30; 97-1, Jan.
5, 1981, pp 192, 193. The joint session is provided for by concurrent
resolution which merely ratifies the requirement in law for a joint
session on January 6 at one o'clock p.m. to count the electoral vote.
Deschler Ch 10 Sec. 2.1 (form); 91-1, Jan. 3, 1969, p 36. This
resolution is considered as privileged. 3 Hinds Secs. 2573-2577; 97-1,
Jan. 5, 1981, p 114. The resolution sets forth the provisions of the
United States Code (3 USC Sec. 15) which specify the procedures to be
followed. These provisions are in effect a joint rule of the two
Houses for the occasion and apply in the joint session and in the
event they divide to consider an objection. 91-1, Jan. 6, 1969, pp
145-147, 169-172.
The Speaker may be authorized to declare a recess in connection
with the joint session (Deschler Ch 10 Sec. 2.2) and he may decline to
recognize for one-minute speeches or extensions of remarks before
recessing for that purpose (Deschler Ch 10 Sec. 2.3; 91-1, Jan. 6,
1969, p 145).
Sec. 3 . Consideration and Voting
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. The electoral votes are counted by
tellers (Deschler Ch 10 Secs. 3.1-3.4) who have been appointed on the
part of the House by the Speaker (87-1, Jan. 3, 1961, p 26; 89-1, Jan.
4, 1965, p 26; 95-1, Jan. 6, 1977, p 312) and on the part of the
Senate by the Vice President (87-1, Jan. 4, 1961, p 72). 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.
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 certificates have been received from both the
Democratic and Republican
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slates of electors from a state, and each slate 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. 87-1, Jan. 6, 1961, p 288.
Where there are conflicting electoral certificates from the same
state, the two Houses meeting in joint session may by unanimous
consent determine which certificate is to be accepted as valid; and
the tellers may then be directed to count the votes in the certificate
deemed valid. 87-1, Jan. 6, 1961, pp 288-291.
Objections
In the event that a timely objection in proper form is raised in
connection with the count, the joint session divides, the objection to
be considered by each House meeting in separate session. Deschler Ch
10 Sec. 3.6. After the two Houses have divided, a motion to lay the
objection on the table is not in order. Deschler Ch 10 Sec. 3.7; 91-1,
Jan. 6, 1969, pp 145-147, 169-172. The controlling statute provides
for the procedure to be followed in debate after the two Houses have
separated. 3 USC Sec. 17. In one instance, the Senate agreed by
unanimous consent to modify the terms of the statute with respect to
the division of time for debate. Deschler Ch 10 Sec. 3.8.
If both the House and Senate or either of them, reject the
objection, the Presiding Officer of the joint session directs the
tellers to record the votes as submitted. 91-1, Jan. 6, 1969, pp 145-
147, 169-172.
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 Secs. 3, 4. Messages
relating to Presidential incapacity are laid before the House. In
1985, the Speaker laid before the House two communications from the
President of the United States advising (1) of the President's
temporary period of incapacity of discharging the Constitutional
powers and duties of the Office of President and directing that the
Vice President discharge those duties in his stead and (2) a
subsequent Presidential determination of his ability to resume those
powers and duties. 99-1, July 15, 1985, p 18955.
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
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this provision are laid before the House by the Speaker. The
nomination is referred to the Committee on the Judiciary, which has
jurisdiction over matters relating to Presidential succession. 93-1,
Oct. 13, 1973, p 34032 (nomination of Gerald R. Ford as Vice
President); 93-2, Aug. 20, 1974, p 29366 (nomination of Nelson A.
Rockefeller as Vice President). The House and Senate consider the
nomination by acting separately on simple resolutions. Deschler Ch 10
Sec. 4.3.