[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 10. Presidential Elections; Electoral College]
[Â§ 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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[[Page 1560]]

    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

[[Page 1561]]

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

[[Page 1563]]

        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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