[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 10. Presidential Elections; Electoral College]
[Â§ 3. Counting Votes; Objections to Count]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1567-1579]
 
                               CHAPTER 10
 
               Presidential Elections; Electoral College
 
Sec. 3. Counting Votes; Objections to Count

House Tellers

Sec. 3.1 Tellers on the part of the House to count the electoral vote 
    are appointed by the Speaker.

    On Jan. 3, 1973,(14) the House had considered and agreed 
to a Senate concurrent resolution (15) providing for the 
convening of a joint session of the two Houses to count the electoral 
votes. The Speaker,(16) pursuant to the provisions of the 
concurrent resolution, appointed Mr. Wayne L. Hays, of Ohio, and Mr. 
Samuel L. Devine, of Ohio, as tellers on the part of the House to count 
the electoral votes.
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14. 119 Cong. Rec. 30, 93d Cong. 1st Sess. For further illustrations 
        see 115 Cong. Rec. 36, 91st Cong. 1st Sess., Jan. 3, 1969; 111 
        Cong. Rec. 26, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 
        Cong. Rec. 27, 87th Cong. 1st Sess., Jan. 3, 1961.
15. S. Con. Res. 1.
16. Carl Albert (Okla.).
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Sec. 3.2 The Speaker has appointed the Chairman and ranking minority 
    member of the Committee on House Administration as tellers on the 
    part of the House to count the electoral votes.

    On Jan. 3, 1969,(17) the Speaker (18) 
appointed as tellers on the part of the House to count the electoral 
votes Mr. Samuel N. Friedel, of Maryland, and Mr. Glenard P. Lipscomb, 
of California, who were, respectively, the Chairman and ranking 
minority member of the Committee on House Administration.
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17. 115 Cong. Rec. 36, 91st Cong. 1st Sess.
18. John W. McCormack (Mass.).
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Sec. 3.3 Where a Member designated as a teller for counting the 
    electoral ballots was unavoidably detained, the Speaker designated 
    another Member to take his place.

    On Jan. 6, 1949,(19) prior to the announcement of the 
arrival of the Senate for the meeting of the joint session of the two 
Houses to count the electoral vote, the Speaker (20) made an 
announcement to the House:
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19. 95 Cong. Rec. 89, 81st Cong. 1st Sess.
20. Sam Rayburn (Tex.).

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[[Page 1568]]

        The Speaker: The gentleman from New York [Mr. Ralph A. Gamble] 
        is unavoidably detained and is unable to serve as teller.
        The Chair designates the gentleman from Pennsylvania [Mr. Louis 
        E. Graham] to act as teller in his stead.

Senate Tellers

Sec. 3.4 Tellers on the part of the Senate to count the electoral votes 
    are appointed by the Vice President.

    On Jan. 3, 1973,(1) following the Senate's consideration 
of and agreement to a concurrent resolution (2) providing 
for the convening of a joint session of the two Houses to count the 
electoral votes, the Vice President,(3) in accordance with 
the provisions of the concurrent resolution, appointed the Senator from 
Kentucky, Marlow W. Cook, and the Senator from Nevada, Howard W. 
Cannon, as the tellers on the part of the Senate to count the electoral 
votes.
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 1. 119 Cong. Rec. 8, 93d Cong. 1st Sess. For other recent examples see 
        115 Cong. Rec. 8, 91st Cong. 1st Sess., Jan. 3, 1969; 111 Cong. 
        Rec. 15, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 Cong. Rec. 
        72, 87th Cong. 1st Sess., Jan. 4, 1961.
 2. S. Con. Res. 1.
 3. Spiro T. Agnew (Md.).
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Conflicting Electoral Certificates

Sec. 3.5 The two Houses, meeting in joint session to count the 
    electoral votes, may by unanimous consent decide which of two 
    conflicting electoral certificates from a state is valid; and the 
    tellers are then directed to count the electoral votes in the 
    certificate deemed valid.

    On Jan. 6, 1961,(4) during proceedings in the joint 
session of the two Houses incident to the opening of the certificates 
and counting of the votes of the electors of the several states for 
President and Vice President, the President of the Senate 
(5) 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. The certificates were received and considered by the tellers, 
whereupon, the following proceedings occurred:
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 4. 107 Cong. Rec. 288-91, 87th Cong. 1st Sess.
 5. Richard M. Nixon (Calif.).
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        The Vice President: . . . The Chair has knowledge, and is 
    convinced that he is supported by the facts, that the certificate 
    from the Honorable William F. Quinn, Governor of the State of Ha

[[Page 1569]]

    waii, dated January 4, 1961, received by the Administrator of 
    General Services on January 6, 1961, and transmitted to the Senate 
    and the House of Representatives on January 6, 1961, being 
    Executive Communication Number 215 of the House of Representatives, 
    properly and legally portrays the facts with respect to the 
    electors chosen by the people of Hawaii at the election for 
    President and Vice President held on November 8, 1960. As read from 
    the certificates, William H. Heen, Delbert E. Metzger, and Jennie 
    Wilson were appointed as electors of President and Vice President 
    on November 8, 1960, and did on the first Monday after the second 
    Wednesday of December, 1960, cast their votes for John F. Kennedy 
    of Massachusetts for President and Lyndon B. Johnson of Texas for 
    Vice President.
        In order not to delay the further count of the electoral vote 
    here, the Chair, without the intent of establishing a precedent, 
    suggests that the electors named in the certificate of the Governor 
    of Hawaii dated January 4, 1961, be considered as the lawful 
    electors from the State of Hawaii.
        If there be no objection in this joint convention, the Chair 
    will instruct the tellers--and he now does--to count the votes of 
    those electors named in the certificate of the Governor of Hawaii 
    dated January 4, 1961--those votes having been cast for John F. 
    Kennedy, of Massachusetts, for President and Lyndon B. Johnson, of 
    Texas, for Vice President.
        Without objection the tellers will accordingly count the votes 
    of those electors named in the certificate of the Governor of 
    Hawaii dated January 4, 1961.
        There was no objection.
        The tellers then proceeded to read, count and announce the 
    electoral votes of the remaining States in alphabetical order.

    Parliamentarian's Note: A recount of ballots in Hawaii, which was 
concluded after the Governor of that state had certified the election 
of the Republican slate of electors, threw that state into the 
Democratic column; the Governor then sent a second communication to the 
Administrator of General Services which certified that the Democratic 
slate of electors had been lawfully appointed. Both slates of electors 
met on the day prescribed by law, cast their votes, and submitted them 
to the President of the Senate pursuant to 3 USC Sec. 11. When the two 
Houses met in joint session to count the electoral votes, the votes of 
the electors were presented to the tellers by the Vice President, and, 
by unanimous consent, the Vice President directed the tellers to accept 
and count the lawfully appointed slate.

Objections

Sec. 3.6 A formal objection was made to the counting of the electoral 
    vote of a state, and the House and Senate divided to separately 
    consider the objection before proceeding with the counting.

[[Page 1570]]

    On Jan. 6, 1969,(6) the President pro tempore of the 
Senate (7~) called to order a joint session of the House and 
Senate for the purpose of counting the electoral votes for President 
and Vice President. When the tellers appointed on the part of the two 
Houses (8) had taken their places at the Clerk's desk, the 
President pro tempore handed them the certificates of the electors and 
the tellers then read, counted, and announced the electoral votes of 
the states in alphabetical order. The vote of North Carolina was stated 
to be 12 for Richard M. Nixon and Spiro T. Agnew for President and Vice 
President respectively and one for George C. Wallace and Curtis E. 
LeMay for President and Vice President respectively. Mr. James G. 
O'Hara, of Michigan, thereupon rose and sent to the Clerk's desk a 
written objection signed by himself and Edmund S. Muskie, the Senator 
from Maine, protesting the counting of the vote of North Carolina as 
read. The President pro tempore directed the Clerk of the House to read 
the objection, which stated: (9)
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 6. 115 Cong. Rec. 145, 146, 91st Cong. 1st Sess. For further 
        discussion and excerpts from the debate, see Sec. Sec. 3.7, 
        3.8, infra.
 7. Richard B. Russell (Ga.).
 8. Senator Carl T. Curtis (Neb.) and Senator B. Everett Jordan (N.C.) 
        on the part of the Senate; Mr. Samuel N. Friedel (Md.) and Mr. 
        Glenard P. Lipscomb (Calif.) on the part of the House.
 9. 115 Cong. Rec. 146, 91st Cong. 1st Sess., Jan. 6, 1969.
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        We object to the votes from the State of North Carolina for 
    George C. Wallace for President and for Curtis E. LeMay for Vice 
    President on the ground that they were not regularly given in that 
    the plurality of votes of the people of North Carolina were cast 
    for Richard M. Nixon for President and for Spiro T. Agnew for Vice 
    President and the State thereby appointed thirteen electors to vote 
    for Richard M. Nixon for President and for Spiro T. Agnew for Vice 
    President and appointed no electors to vote for any other persons. 
    Therefore, no electoral vote of North Carolina should be counted 
    for George C. Wallace for President or for Curtis E. LeMay for Vice 
    President.
            James G. O'Hara, M.C.
            Edmund S. Muskie, U.S.S.

    Following the President pro tempore's finding that the objection 
complied with the law (10) and his subsequent inquiry as to 
whether there were any further objections to the certificates from the 
State of North Carolina, the two Houses separated to consider the 
objection, the Senate withdrawing to the Senate Chamber.
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 10. 3 USC Sec. 15.
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    The legal basis for the objection was contained in 3 USC Sec. 15, 
which provided in relevant part:

[[Page 1571]]

        . . . [A]nd no electoral vote or votes from any State which 
    shall have been regularly given by electors whose appointment has 
    been lawfully certified to according to section 6 of this title 
    from which but one return has been received shall be rejected, but 
    the two Houses concurrently may reject the vote or votes when they 
    agree that such vote or votes have not been so regularly given by 
    electors whose appointment has been so certified.

    Those supporting the objection in the House and Senate contended 
that the votes of one North Carolina elector had not been ``regularly 
given'' and should therefore be rejected.
    The background of the objection was explained by Senator Muskie 
during his opening remarks in the Senate debate on the objection: 
(11)
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11. 115 Cong. Rec. 211, 91st Cong. 1st Sess., Jan. 6, 1969.
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        In this case, a North Carolina elector was nominated as an 
    elector by a district convention of the Republican Party in North 
    Carolina. He did not reject that nomination. His name was not 
    placed on the ballot because under North Carolina law, as in the 
    case of 34 other States, only the names of the party's presidential 
    and vice-presidential candidates appear, and electors are elected 
    for the presidential and vice-presidential candidates receiving the 
    plurality of the vote in North Carolina.
        Dr. Bailey and 12 other North Carolina Republican electors were 
    so elected on November 5. The election was certified. Dr. Bailey 
    did not reject that election or that certification. So up to that 
    moment, so far as the people from North Carolina understood, he was 
    committed as an elector on the Republican slate, riding under the 
    names of Richard M. Nixon and Spiro T. Agnew, to vote for that 
    presidential and vice-presidential ticket.
        On December 16, the electors of North Carolina met in Raleigh 
    to cast their votes. . . . It was at that point that Dr. Bailey 
    decided to cast his vote for the Wallace-LeMay ticket instead.

    In the House, Mr. Roman C. Pucinski, of Illinois, made a similar 
presentation.(12)
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12. Id. at pp. 159, 160.
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    During debate on the objection in both the House and the Senate, 
proponents of the objection focused on several key arguments in support 
thereof. It was argued that the elector had at least a moral commitment 
to vote for the Republican candidates--a commitment made more 
compelling in the light of custom and practice since the adoption of 
the Constitution,(13) and reliance by the voters on the 
elector's conduct and apparent intentions.(14) Senator 
Muskie stated: (15)
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13. See remarks of Mr. Edward P. Boland (Mass.), id. at pp. 165, 166, 
        and remarks of Mr. O'Hara, id. at p. 169.
14. See, for example, the remarks of Senator Frank Church (Idaho), 
        id.at p. 214.
15. Id. at p. 212.

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[[Page 1572]]

        [A]s I understand it, the Constitution, as interpreted by the 
    debates in the Constitutional Convention, clearly makes an elector 
    a free agent. However, from the beginning of the country's history, 
    political parties developed, and the political parties arranged for 
    slates of electors assigned to their presidential and vice-
    presidential candidates. That political party slate of candidates 
    has always been regarded, with but five other exceptions, as 
    binding upon those who are electors on that slate.
        So I argue that in the light of that tradition, when an elector 
    chooses to go on a party slate, he is indicating his choice for 
    President.
        I say, secondly, that in the case of North Carolina and this 
    statute, which is found also in 34 other States, the fact that only 
    the presidential and vice-presidential names appear on the ballot 
    is confirmation of this tradition; that when an elector accepts a 
    place on a slate under these circumstances, in the light of this 
    tradition, he knows that to the public at large he is saying, by 
    his action, ``I am for Nixon for President.'' He is saying 
    implicitly, in my judgment, ``If I am elected an elector under 
    these circumstances, I will vote for Richard Nixon for President.''
        I believe that is the tradition. I believe that this undergirds 
    the responsibility of an elector; and once he has set that train of 
    understanding in motion, he cannot, after election day, when it is 
    too late for the voters to respond to any change of mind on his 
    part, say, ``I changed my mind, and I am going to vote for somebody 
    else.'' It is in the nature of estoppel.

    Those opposed to the objection argued that the electors were ``free 
agents'' (16) under the Constitution,(17) 
permitted to vote for whomever they pleased. According to such view, 
Congress, under the Constitution and 3 USC Sec. 15, exercised only a 
ministerial function in counting the electoral ballots, and such 
ballots could be discounted only if the certificates were not in 
regular form or were not authentic.(18)
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16. See the remarks of Mr. William M. McCulloch (Ohio), id. at p. 148; 
        Mr. Richard H. Poff (Va.), id. at p. 158; Senator Ralph W. 
        Yarborough (Tex.), id. at p. 217; Senator Robert C. Byrd (W. 
        Va.), id. at p. 245.
17. Relevant provisions are art. II, Sec. 1, clause 3; and the 12th 
        amendment.
18. See remarks of Mr. John B. Anderson (Ill.), 115 Cong. Rec. 151, 
        91st Cong. 1st Sess., Jan. 6, 1969; Mr. Bob Eckhardt (Tex.), 
        id. at p. 164; Senator Curtis, id. at pp. 219, 220; Senator 
        Herman E. Talmadge (Ga.), id. at p. 223.
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    It was also noted that North Carolina had not adopted a law, as had 
a majority of states, requiring the electors to pledge to support their 
party's nominee; \(1)\ this raised, in the view of some, an implication 
that North Carolina did not intend its electors to

[[Page 1573]]

be bound to support particular party nominees. Senator Edward M. 
Brooke, of Massachusetts, made the following remarks: \(2)\
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 1. See remarks of Mr. Alton A. Lennon (N.C.), id. at pp. 149, 150. The 
        Supreme Court in Ray v Blair, 343 U.S. 214 (1952), upheld the 
        constitutionality of state laws requiring an elector to pledge 
        to support the nominee of his political party.
 2. Id. at p. 213.
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        In a system of constitutional government matters of procedure 
    often become vital issues of substance. I submit that such a case 
    is now before us. There are strong constitutional grounds for the 
    authority of a State to bind its electors to vote as they are 
    pledged. If a State has so bound its electors, I would contend that 
    the Congress can properly act to see that the State's legal 
    requirements are fulfilled. This would be a reasonable construction 
    of the 1887 statute which provides that Congress can reject an 
    elector's vote which has not been regularly given.
        But it is my considered opinion that, unless the State chooses 
    to bind its electors, Congress cannot do so after the fact.
        Among the many serious implications of this situation, one 
    lesson in particular stands out:
        No official should ever be granted discretionary authority 
    unless the people clearly understand that, under some 
    circumstances, he may actually use it. And if such authority, once 
    granted, is deemed excessive or unwise, the people should 
    explicitly and promptly rescind it.
        As I understand the relevant constitutional guidelines, the 
    power to remedy this particular problem lies with the people of 
    North Carolina acting through their representative institutions at 
    the State level. . . .
        In addition, however, there is a national interest in removing 
    so critical a loophole in our constitutional system. If the 
    electoral college is to remain an element in our political life, 
    surely we should move to design a constitutional amendment which, 
    once and for all, binds electors to vote for the candidates to whom 
    they are pledged. I hasten to add that this possible change in our 
    electoral system will certainly not suffice. Indeed, one of the 
    paramount tasks of this Congress will be to examine the full range 
    of constitutional proposals to create a fair and secure procedure 
    for presidential elections.

    In addition to the views stated above by Senator Brooke, several of 
those speaking to the objection expressed support for a constitutional 
amendment to reform the electoral system, a remedy which, it was 
argued, would be preferable to ``piecemeal'' changes to be achieved 
under present law.\(3)\

[[Page 1574]]

    At the conclusion of debate in each House, the yeas and nays were 
ordered and the House and Senate respectively rejected the 
objection.\(4)\ Thereupon, the Senate reassembled in the Chamber of the 
House in joint session.\(5)\ The President pro tempore called the 
meeting to order and directed the Secretary of the Senate and the Clerk 
of the House to report the action taken by the two Houses. Following 
the report, the President pro tempore directed the tellers to record 
and announce the vote of the State of North Carolina, and the counting 
of the electoral votes proceeded.
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 3. See, for example, the remarks of Mr. Hamilton Fish, Jr. (N.Y.), id. 
        at p. 168.
            Among those Members and Senators who favored a 
        constitutional amendment to revise the electoral system were 
        Mr. Hale Boggs (La.), id. at p. 151; Mr. Emanuel Celler (N.Y.), 
        id. at p. 149; Mr. Phillip Burton (Calif.), id. at p. 160; Mr. 
        Charles A. Vanik (Ohio), id. at p. 168; Senator Karl E. Mundt 
        (S.D.), id. at p. 216; Senator Birch Bayh (Ind.), id. at p. 
        218; Senator Harry F. Byrd, Jr. (Va.), id. at p. 221; and 
        Senator Robert C. Byrd (W. Va.), id. at pp. 244, 245. It was 
        pointed out by Senator Muskie, however, that over 500 
        resolutions had been introduced to reform the electoral system 
        by constitutional amendment during the history of the Republic. 
        Id. at p. 220.
 4. See Sec. 3.7, infra.
 5. 115 Cong. Rec. 171, 91st Cong. 1st Sess., Jan. 6, 1969.
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Sec. 3.7 Under the statute prescribing the procedure for consideration 
    by the respective Houses of an objection to a state's electoral 
    vote count, a motion to lay the objection on the table is not in 
    order.

    On Jan. 6, 1969,\(6)\ following the raising of an objection to the 
count of North Carolina's electoral vote, the joint session of the two 
Houses divided (the Senate repairing to the Senate Chamber), so that 
the objection could be considered by each House meeting in separate 
session. The House was called to order by the Speaker\(7)\ and debate 
on the objection ensued, at the conclusion of which a motion was made 
by Mr. Gerald R. Ford, of Michigan, to lay the objection on the table.
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 6. 115 Cong. Rec. 145-47, 169-72, 91st Cong. 1st Sess.
 7. John W. McCormack (Mass.).
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    A point of order against the motion was made by Mr. James G. 
O'Hara, of Michigan, asserting that the motion to table such an 
objection was inconsistent with the requirement of 3 USC Sec. 17, that 
after two hours of debate in each House on the objection to the count 
of a state's electoral vote, ``it shall be the duty of the presiding 
officer of each House to put the main question without further 
debate.''

    After further debate, the Speaker sustained the point of order. He 
stated:

        It seems to the Chair that the law [3 USC Sec. 17] is very 
    plain with respect to the 5-minute rule and time of debate. With 
    respect to the problem, the section states, and I quote:

            It shall be the duty of the presiding officer of each House 
        to put the main question without further debate.

[[Page 1575]]

        In the opinion of the Chair the main question is the objection 
    filed by the gentleman from Michigan (Mr. O'Hara) and the Senator 
    from Maine, Senator Muskie.
        The Chair is of the opinion that the law plainly governs the 
    situation; that the Chair must put the main question and that the 
    motion to table is not in order.
        Accordingly, the Chair sustains the point of order.

    The question on agreeing to the objection was taken; the objection 
being rejected--yeas 170, nays 228, not voting 32, not sworn 4. A 
motion to reconsider was laid on the table.
    A similar situation arose in the Senate, during proceedings 
relating to the objection to the North Carolina vote. The Senate had 
been called to order by President pro tempore Richard B. Russell, of 
Georgia, who then directed the Clerk to read the objection, as follows: 
(8)
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 8. 115 Cong. Rec. 210, 91st Cong. 1st Sess.
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        We object to the votes from the State of North Carolina for 
    George C. Wallace for President and for Curtis E. LeMay for Vice 
    President on the ground that they were not regularly given in that 
    the plurality of votes of the people of North Carolina were cast 
    for Richard M. Nixon for President and for Spiro T. Agnew for Vice 
    President and the State thereby appointed 13 electors to vote for 
    Richard M. Nixon for President and for Spiro T. Agnew for Vice 
    President and appointed no electors to vote for any other persons. 
    Therefore, no electoral vote of North Carolina should be counted 
    for George C. Wallace for President or for Curtis E. LeMay for 
    Vice-President.

    Following a statement by the President pro tempore that this was an 
unusual parliamentary situation in that it was the first time an 
objection to an electoral vote had been filed,(9) and a 
reading by the Clerk of the provisions of 3 USC Sec. 17, the Senate 
agreed to a unanimous-consent request by Edmund S. 
Muskie,(10) the Senator from Maine, that the time be divided 
equally between proponents and opponents of the objection, with time 
for the proponents to be allotted under the direction of the Majority 
Leader, Michael J. Mansfield, of Montana, and time for the opponents to 
be allotted under the direction of Senator Dirksen. Debate on the 
objection then proceeded.
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 9. According to Minority Leader Everett McK. Dirksen (Ill.), this was 
        also the first time the Senate had operated under the five-
        minute rule. Id. at p. 223.
10. Id. at p. 211.
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    During the debate on the objection, Edward M. Kennedy, the Senator 
from Massachusetts, inquired as to whether a motion to lay the 
objection on the table would be in order: (11)
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11. Id. at p. 223.

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[[Page 1576]]

        Mr. Kennedy: Mr. President, may I propound a parliamentary 
    inquiry whether the motion to table is in order or is not in order?
        The President Pro Tempore: The Chair would rule that it is not 
    in order. The statute under which we are now proceeding states the 
    main question shall be put. Let the Chair read the last clause of 
    section 17 of title 3:

            But after such debate shall have lasted two hours it shall 
        be the duty of the presiding officer of each House to put the 
        main question without further debate.

    At the conclusion of the two hours of debate, the question on 
agreeing to the objection was taken; and the objection was rejected 
(yeas 33 and nays 58). A motion to reconsider was laid on the 
table.(12) Subsequently, at the resumption of the joint 
session, the Presiding Officer directed the tellers to announce and 
record the electoral votes of North Carolina as submitted.
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12. Id. at p. 246.
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Sec. 3.8 During consideration of an objection to the electoral vote 
    count of a state, unanimous consent was sought for purposes of 
    modifying the procedures prescribed by statute for consideration of 
    such objections; after discussion and rejection of such request, a 
    subsequent unanimous-consent request was agreed to which qualified 
    the terms of the statute.

    During proceedings arising from an objection to the count of 
electoral votes of North Carolina,(13) the following 
statutory provision (14) was read in the Senate: 
(15)
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13. See Sec. 3.6, supra.
14. 3 USC Sec. 17.
15. 115 Cong. Rec. 210, 91st Cong. 1st Sess., Jan. 6, 1969.
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        When the two Houses separate to decide upon an objection that 
    may have been made to the counting of any electoral vote or votes 
    from any State, or other question arising in the matter, each 
    Senator and Representative may speak to such objection or question 
    five minutes, and not more than once; but after such debate shall 
    have lasted two hours it shall be the duty of the presiding officer 
    of each House to put the main question without further debate.

    Senator Edmund S. Muskie, of Maine, then made the following 
unanimous-consent request:

        . . . I ask unanimous consent that debate on objections to the 
    electoral vote of North Carolina for George C. Wallace and Curtis 
    LeMay shall be limited to 2 hours, as provided by law in section 
    17, title 3, United States Code, and that the time be equally 
    divided and controlled by the majority leader and the minority 
    leader.

    Discussion ensued as to the effect of the request and the 
appropriateness of adopting procedures that, in the view of some Sen

[[Page 1577]]

ators, would constitute a departure from the terms of the statute.
    As background to the discussion, it may, of course, be noted that, 
under the Constitution,(16) ``Each House may determine the 
Rules of its Proceedings,'' so that there was no absolute legal 
obstacle to the Senate's adoption of whatever procedures seemed 
appropriate at the time. It may also be noted that the terms of the 
unanimous-consent request did not on their face necessarily contravene 
the statute. But it will be observed that the Chair declined to pass 
upon the effect or legality of the unanimous-consent request, and 
stated that a single objection to the request would preserve procedures 
under the statute.
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16. U.S. Const. art. I, Sec. 5.
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    The Chair did remark that unanimous-consent requests are 
entertained that are seemingly ``in conflict with'' both statutes and 
the Constitution. Citing the constitutional requirement of the quorum, 
he said:

        . . . We see suggestions of the absence of a quorum made 
    several times during the day and withdrawn by unanimous consent. . 
    . .

    It may perhaps be implied from the Chair's remarks here and 
throughout the debate that a proposed departure from statutory 
provisions such as those in question is in any event permissible if no 
point of order or objection is raised.
    The proceedings relating to Senator Muskie's unanimous-consent 
request were in part as follows: (17)
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17. 115 Cong. Rec. 210, 211, 91st Cong. 1st Sess., Jan. 6, 1969.
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        Mr. [Carl T.] Curtis [of Nebraska]: Is a unanimous-consent 
    request in order which, by its terms, is not in accord with a duly 
    enacted statute?
        The President Pro Tempore: (18) The Chair will state 
    that unanimous-consent requests can also be received and 
    entertained here that are in conflict with the statutes. Sometimes 
    they are in conflict with the Constitution.
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18. Richard B. Russell (Ga.).
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        We have three sets of rules in the Senate. Some of them are 
    spelled out in the Constitution, others are spelled out in the 
    Senate rule book, and the great majority of them are embraced in 
    the precedents of the Senate.
        For example, one of the constitutional rules had to do with 
    ascertaining the presence of a quorum. We see suggestions of the 
    absence of a quorum made several times during a day, and withdrawn 
    by unanimous consent. That can be done only by unanimous consent. 
    If the proposal of the Senator from Maine can be made only by 
    unanimous consent, any single Senator who thinks it is improper, 
    and that we should follow the statute in this particular case--has 
    a right to destroy it completely by uttering two words--``I 
    object,'' and the proposal will fall.

[[Page 1578]]

        Mr. [Edward W.] Brooke [of Massachusetts]: Mr. President, 
    reserving the right to object, do I understand the only difference 
    between the unanimous-consent request and the statute to be that 
    the time would be controlled by the Chair and not by the majority 
    and minority leaders, under the statute?
        Mr. Muskie: As the unanimous-consent request is worded, time 
    would be under the control of the majority and minority leaders.
        Mr. Brooke: That is the only thing that was intended to be 
    achieved by the unanimous-consent agreement?
        Mr. Muskie: Plus liberalizing the 5-minute requirement. The 
    statute requires that each Senator may speak for 5 minutes, and not 
    more than once. This was discussed quite extensively, and it was 
    felt that the ideal arrangement would be to have full and free 
    debate, with the time controlled and free exchange between 
    Senators. It was felt that this could be done, unless a Senator 
    objected; so we decided to make the effort. . . .
        Mr. [Frank] Church [of Idaho]: Mr. President, I have no desire 
    to object, but I do not understand how this can be a proper 
    proceeding.
        The President Pro Tempore: The Chair is not permitted to enter 
    any ruling that purports to pass upon the legality of a unanimous-
    consent request, any more than is any other Member of this body.
        Is there objection?
        Mr. Brooke: Mr. President, it seems to me that the intent of 
    the statute is to give as many Senators as possible an opportunity 
    to be heard on this important issue. As I understand the 
    distinguished Senator from Maine, under the unanimous-consent 
    request, conceivably the distinguished Senator might use 1 hour of 
    the time, and one Senator from the minority side use 1 hour of the 
    time, which in my opinion would certainly frustrate the intent of 
    the statute. I feel so strongly about it, Mr. President, that as 
    much as I dislike to do so, I hereby object.

        The President Pro Tempore: The Senator from Massachusetts 
    objects. The Chair, having tolerated considerable discussion and 
    parliamentary inquiries, now asks of the Senate unanimous consent 
    that that time not be charged against the 2 hours. If there is no 
    objection, it will not be charged; and that leaves the matter open 
    for the Chair to recognize Senators who wish to speak on this 
    subject.
        The Chair recognizes the Senator from Maine for 5 minutes.
        Mr. Muskie: Mr. President, I anticipated that this might 
    result, and I fully understand the reservations expressed by 
    Senators. I have another unanimous-consent request to propose. I 
    ask unanimous consent that debate be limited to 2 hours, as 
    provided by statute, that the time be equally divided and 
    controlled by the majority leader and the minority leader, and that 
    the statutory limitation of 5 minutes per Senator be included, but 
    that the 5 minutes available to any Senator may be used to ask or 
    answer questions.
        The purpose of this request, Mr. President, is to do two 
    things: First, to insure that both sides of the debate shall have 
    equal access to the attention of the Senate; second, that the use 
    of the 5 minutes shall not be so rigid that

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    there cannot be the kind of exchange that would permit the 
    answering of questions on the minds of Senators. The 
    Parliamentarian has advised me that, in his judgment, this is 
    consistent with the statute. It touches upon points not covered by 
    the statute, and it embraces the limitations of the statute. . . .
        The President Pro Tempore: Is there objection to the unanimous-
    consent request? The Chair hears none, and the request is agreed 
    to.