[Deschler-Brown Precedents, Volume 14,  Chapter 30]
[Chapter 30. Voting]
[C. Yeas and Nays and Other Votes of Record]
[Â§ 23. The Yeas and Nays; In General]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 11581-11584]
 
                               CHAPTER 30
 
                                 Voting
 
               C. YEAS AND NAYS AND OTHER VOTES OF RECORD
 
Sec. 23. The Yeas and Nays; In General


    The only method of voting expressly incorporated in the 
Constitution is voting by the yeas and nays.(1) The yeas and 
nays are taken on the ``Desire of one fifth of those [Members] 
Present,'' a computation which may result in more or fewer Members than 
the number required to constitute one-fifth of a quorum. One-fifth of a 
quorum is the necessary number to second a demand for a recorded vote 
in the House under Rule I clause 5(a).
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 1. U.S. Const. art. I, Sec. Sec. 5, 7.
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    If a Member desires a vote to be recorded by name, showing whether 
a Member responds yes or no to a vote, he can pursue several options: 
when a voice vote is taken, any Member not liking the result announced 
by the Speaker, can ask for a division. If those who stand and are 
counted for and against the proposition do not constitute a quorum of 
the House, the Member can make a point of order that a quorum is not 
present and object to the vote under Rule XV clause 4. If a quorum does 
appear on the vote, or if the Speaker counts and declares a quorum 
present, it has been possible, since 1971, to ask for a recorded 
vote.(2) If that request is not supported by one-fifth of a 
quorum of the House (or 44 Members), then it is still possible to ask 
for the yeas and nays which can be ordered by one-fifth of those 
present.(3)
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 2. See Sec. 30, infra.
 3. See the proceedings of Oct. 14, 1978, for an occasion where voice 
        and division votes were taken in sequence, then objected to 
        under Rule XV clause 4; and when a quorum was found to be 
        present, and a recorded vote refused by an insufficient second, 
        the yeas and nays were finally ordered by one-fifth of those 
        present. 124 Cong. Rec. 38553, 95th Cong. 2d Sess.
            An interesting example of the use of the yeas and nays 
        occurred on Nov. 4, 1983, when, during special-order speeches 
        at the end of the day, a Member made an unexpected motion to 
        adjourn. On a division vote, demanded by the proponent of the 
        motion to adjourn, there were only four Members present and the 
        vote was 3-1 in the affirmative. The majority, in an effort to 
        protect those Members whose special order had not yet been 
        called and to retain the option of filing a privileged report 
        from the Committee on Rules before adjournment, then objected 
        to the vote on the ground that a quorum was not present. Since 
        a quorum is not required on an affirmative motion to adjourn, 
        that objection was not in order. A recorded vote was then 
        requested, but obviously, 44 Members (one-fifth of a quorum) 
        were not present. The only alternative to adjourning was then 
        to demand the yeas and nays, which were ordered by one-fifth of 
        those present. On that vote, taken by electronic device, a 
        quorum responded and the motion to adjourn was defeated by a 
        vote of 99 to 120, with one Member answering present. 129 Cong. 
        Rec. 30946, 30947, 98th Cong. 1st Sess.

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[[Page 11582]]

    The Constitution requires a vote on reconsideration of a 
Presidential veto to be taken by the yeas and nays.(4) 
Certain rules of the House also require that the yeas and nays be 
taken: in Rule XV clause 7 specifies that the yeas and nays shall be 
considered as ordered on passage of a bill making general 
appropriations, increasing federal income tax rates and on the final 
adoption of the budget or any conference report thereon.(5) 
Rule XXVIII clause 6, requires a roll call vote on any motion to close 
a conference meeting.(6) There are also some instances in 
law which attempt to mandate a yea and nay vote on an issue before the 
House (see, e.g., the provisions of the Legislative Reorganization Act 
of 1970, which requires a vote not to adjourn for the August recess to 
be taken by the yeas and nays).
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 4. U.S. Const. art. I, Sec. 7, clause 2.
 5. See H. Res. 6, adopting the rules of the House for the 104th 
        Congress. 141 Cong. Rec. p. ____, 104th Cong. 1st Sess., Jan. 
        4, 1995.
 6. This rule was first adopted on Jan. 4, 1977 (H. Res. 5, 123 Cong. 
        Rec. 53-70, 95th Cong. 1st Sess.).
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    The emergence of electronic voting (7) has substantially 
modified the actual voting process. While the Speaker may, in his 
discretion,(8) order that the vote be taken by the 
traditional approach (9) in which the Clerk calls the roll, 
and each Member votes on the question as he answers to his 
name,(10) the Chair usually employs the electronic voting 
system. In the latter situation, Members have ``not less than fifteen 
minutes from the ordering of the roll call. . . .'' (11) in 
which to have their vote or presence recorded which is accomplished by 
inserting a plastic card in one of many voting ``stations'' and 
depressing the appropriate (i.e., ``Yea,'' ``Nay,'' or ``Present'') 
pushbutton.
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 7. See Sec. 31, infra.
 8. Rule XV clause 5, House Rules and Manual Sec. 774b (1995).
 9. Id.
10. The roll is called twice, and Members appearing after their names 
        are called may still vote providing the result of the vote has 
        not been announced.
11. Rule XV clause 5, House Rules and Manual Sec. 774b (1995).
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    Regardless of which method is utilized, the Clerk is required 
(12) to:
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12. Id.

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[[Page 11583]]

        . . . enter in the Journal and publish in the Congressional 
    Record in alphabetical order in each category, a list of names of 
    those Members recorded as voting in the affirmative, of those 
    Members recorded as voting in the negative, and of those Members 
    answering present, as the case may be, as if their names had been 
    called. . . .

                          -------------------

Constitutional Origins

Sec. 23.1 The Constitution specifies that one-fifth of the Members 
    present may order a yea and nay vote.

    On Jan. 4, 1965,(13) a resolution (H. Res. 1) directing 
the Speaker to administer the oath of office to the gentleman from 
Mississippi was under discussion. Following a few preliminary 
inquiries, Mrs. Edith S. Green, of Oregon, initiated the discussion 
below with the Chair:
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13. 111 Cong. Rec. 19, 89th Cong. 1st Sess.
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        Mrs. Green of Oregon: Mr. Speaker, will the gentleman yield for 
    a parliamentary inquiry?
        Mr. [Carl] Albert [of Oklahoma]: I yield for a parliamentary 
    inquiry.
        Mrs. Green of Oregon: Since the rules of the House have not 
    been adopted, am I correct in understanding that it would require 
    20 percent of the Members here to stand for a yea-and-nay vote?
        The Speaker: (14) The Chair will state that under 
    the Constitution, it would require one-fifth of the Members present 
    to rise to order a yea-and-nay vote.(15)
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14. John W. McCormack (Mass.).
15. This prerogative emanates from art. I, Sec. 5, clause 3 of the 
        Constitution which states, in its entirety: ``Each House shall 
        keep a Journal of its Proceedings, and from time to time 
        publish the same, excepting such Parts as may in their Judgment 
        require Secrecy; and the Yeas and Nays of the Members of either 
        House on any question shall, at the Desire of one fifth of 
        those Present, be entered on the Journal.''
            See also Sec. 26.4, infra, and especially Sec. 26.10, 
        infra, where the yeas and nays were refused after 20 percent of 
        those voting had seconded the demand, but the Chair noted that, 
        counting himself, 20 percent of those present had not supported 
        the demand.
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    Parliamentarian's Note: The yeas and nays may be demanded (1) while 
the Speaker is putting the question to a voice vote or (2) is 
announcing the result of a division, (3) as a vote by tellers is being 
demanded, and (4) even after the announcement of the vote if the demand 
is diligently made and the House has not passed to other business.

Sec. 23.2 The Constitution requires in all cases that a vote to pass a 
    bill over the President's veto must be had by the yeas and nays.

    On Oct. 20, 1951,(16) the Speaker (17) laid 
before the House the

[[Page 11584]]

following message from the Senate:
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16. 97 Cong. Rec. 13736, 13737, 13745, 13746, 82d Cong. 1st Sess.
17. Sam Rayburn (Tex.).
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        The Senate having proceeded to reconsider the bill (S. 1864) 
    entitled ``An act to authorize payments by the Administrator of 
    Veterans' Affairs on the purchase of automobiles or other 
    conveyances by certain disabled veterans, and for other purposes.'' 
    returned by the President of the United States with his objections, 
    to the Senate, in which it originated, it was

            Resolved, That the said bill do pass, two-thirds of the 
        Senators present having voted in the affirmative.

    The Clerk then read the President's veto message after which debate 
ensued until Mr. John E. Rankin, of Mississippi, moved the previous 
question. The previous question then being ordered, the Chair 
proceeded, stating:

        The question is, Will the House, on reconsideration, pass the 
    bill, the objections of the President to the contrary 
    notwithstanding?
        Under the Constitution, this vote must be determined by the 
    yeas and nays.(18)
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18. U.S. Const. art. I, Sec. 7, clause 2:
            ``Every Bill which shall have passed the House of 
        Representatives and the Senate, shall, before it become a Law, 
        be presented to the President of the United States; If he 
        approves he shall sign it, but if not he shall return it, with 
        his Objections to that House in which it shall have originated, 
        who shall enter the Objections at large on their Journal, and 
        proceed to reconsider it. If after such Reconsideration two 
        thirds of that House shall agree to pass the Bill, it shall be 
        sent, together with the Objections, to the other House, by 
        which it shall likewise be reconsidered, and if approved by two 
        thirds of that House, it shall become a Law. But in all such 
        Cases the Votes of both Houses shall be determined by Yeas and 
        Nays, and the Names of the Persons voting for and against the 
        Bill shall be entered on the Journal of each House 
        respectively. If any Bill shall not be returned by the 
        President within ten Days (Sundays excepted) after it shall 
        have been presented to him, the Same shall be a Law, in like 
        Manner as if he had signed it, unless the Congress by their 
        Adjournment prevent its Return in which Case it shall not be a 
        Law.''
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