Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress
vote was challenged was from a state that did not by law bind its electors to vote only for the candidates to whom they were pledged. In a 2020 decision, Chiafalo v. Washington,[1] the Supreme Court unanimously held that a state may penalize electors who do not cast their ballots for the presidential and vice presidential candidates who won the state’s popular vote.[2] According to the Court, state authority to appoint electors under Article II of the Constitution includes not only the power to condition their appointment upon a pledge to support the state’s popular vote winner; it also includes the ability to impose penalties on those electors who violate that pledge.[3] At the time of the ruling, the Court identified laws in 32 states and the District of Columbia requiring electors to pledge to cast their ballots for their parties’ nominees for President and Vice President, with 15 of those states providing for sanctions on electors for noncompliance.[4]
The second instance related to reported voting irregularities in Ohio.[5] In 2005, a Representative (Stephanie Tubbs Jones of Ohio) and a Senator (Barbara Boxer of California) objected in writing to the Ohio electoral votes. The chambers withdrew from the joint session to consider the objection, and the House and Senate each rejected the objection. When the House and Senate resumed the joint session, the electoral votes were counted as cast.[6]
Procedures for Considering Objections
Section 17 lays out procedures for each house to follow when debating and voting on an objection. These procedures limit debate on the objection to not more than two hours, during which each Member may speak only once and for not more than five minutes. Then “it shall be the duty of the presiding officer of each House to put the main question without further debate.” Under this provision, the presiding officer in each house held in 1969 that a motion to table the objection was not in order.[7]
In the House, the Speaker announced both in 1969 and 2005 that he would attempt to recognize supporters of the objection and opponents in an alternating fashion for the duration of the two-hour period. In one instance in 1969, the Speaker inquired whether a Member supported or opposed the challenge before he agreed to recognize him to speak. Members can yield to each other during debate as they can during five-minute debate in the Committee of the Whole, and many chose to do so in 2005. The Speaker also entertained unanimous consent requests to insert material in the Congressional Record.
- ↑ 140 S. Ct. 2316 (2020).
- ↑ See id. at 2328.
- ↑ See id. at 2319–20. See also Ray v. Blair, 343 U.S. 214, 228 (1952) (holding that neither Article II nor the Twelfth Amendment to the Constitution prohibits the states from appointing only those electors who are committed to voting for a party’s presidential nominee, but not addressing whether such state restrictions could constitutionally be enforced).
- ↑ See id. at 2321–22.
- ↑ Congressional Record, daily edition, vol. 151 (January 6, 2005), pp. H86–H127.
- ↑ When the two chambers reconvened in joint session, the Secretary of the Senate reported that the Senate had agreed to the following action: “Ordered, that the Senate by a vote of 1 aye to 74 nays rejects the objection to the electoral votes cast in the State of Ohio for George W. Bush for President and Richard Cheney for Vice President.” The Clerk of the House then stated the results of the House action: “Ordered, that the House of Representatives rejects the objection to the electoral vote of the State of Ohio.” Congressional Record, daily edition, vol. 151 (January 6, 2005), p. H128. The House vote was 31–267. Both houses used roll call votes to decide the question.
- ↑ Deschler’s Precedents, ch. 10, §3.7, pp. 18–20.
