[Constitution, Jefferson's Manual, and the Rules of the House of Representatives, 112th Congress]
[112nd Congress]
[House Document 111-157]
[The United States Constitution]
[Pages 95-98]
[From the U.S. Government Publishing Office, www.gpo.gov]


[[Page 95]]

 

                      AMENDMENT XII.\3\



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;-- * * *
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[[Page 96]]

  \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. 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: (1) the 1957 count was changed 
to Monday, January 7 (P.L. 84-436); (2) the 1985 count was changed to 
Monday, January 7 (P.L. 98-456); (3) the 1989 count was changed to 
Wednesday, January 4 (P.L. 100-646); (4) the 1997 count was changed to 
Thursday, January 9 (P.L. 104-296); (5) the 2009 count was changed to 
Thursday, January 8 (P.L. 110-430).




[[Page 97]]

  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)).


[[Page 98]]




gible to the Office of President shall be 
eligible to that of Vice-President of the United States.



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 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 ineli





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 
1803.

  In  1825 the House elected a President under the 12th amendment 
(III, 1985); and in 1837 the Senate elected a Vice President (III, 
1941).