Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress
In 1969 the Senate agreed, by unanimous consent, to a different way in which the time for debate was controlled and allocated, granting one hour each to the majority and minority leaders and authorizing them to yield not more than five minutes to any Senator seeking recognition to speak.[1] However, in 2005, the five-minute debate prescribed in the statute was followed and the presiding officer entertained requests to insert statements into the Congressional Record.
Basis for Objections
The general grounds for an objection to the counting of an electoral vote or votes would appear from the federal statute and from historical sources to be that such vote was not “regularly given” by an elector, and/or that the elector was not “lawfully certified” according to state statutory procedures. The statutory provision first provides in the negative that “no electoral vote … regularly given by electors whose appointment has been lawfully certified … from which but one return has been received shall be rejected” (3 U.S.C. §15). The provision then reiterates for clarity[2] that both houses concurrently may reject a vote when not “so regularly given” by electors “so certified” (3 U.S.C. §15). It should be noted that the word lawfully was expressly inserted by the House in the Senate legislation (S. 9, 49th Congress) before the word certified.[3] Such addition arguably provides an indication that Congress thought it might, as grounds for an objection, question and look into the lawfulness of the certification under state law.
The objection that votes were not “regularly given” may, in practice, subsume the objection that the elector was not “lawfully certified,” because a vote given by one not “lawfully certified” may arguably be other than “regularly given.” Nevertheless, the two objections are not necessarily the same. In the case of the “faithless elector” in 1969, described above, the elector was apparently “lawfully certified” by the state, but the objection raised was that the vote was not “regularly given” by such elector. In the above-described 2005 case, the objection was also based on the grounds that the electoral votes “were not, under all of the known circumstances, regularly given.”
Receipt of Two Certificates from the Same State
Influenced by its historical experience prior to 1887, Congress was particularly concerned in the statute of 1887 with the case of two lists of electors and votes being presented to Congress from the same state. Three different contingencies appear to be provided for in the statute for two lists being presented. In the first instance, two lists would be proffered, but the assumption presented in the law is that only one list would be from electors who were determined to be appointed pursuant to the state election contest statute (as provided for in 3 U.S.C. §5), and that in such case, only those electors should be counted. In the second case, when two lists were proffered as being from two different state authorities who arguably made determinations provided for under 3 U.S.C. §5 (a state statutory election contest determined at least six days prior to December 14, the winner of the state presidential election), the question of which state authority is “the lawful tribunal of such State” to make the decision (and thus the acceptance of those electors’ votes) shall be decided only upon the concurrent agreement of both houses “supported by the decision of such State so authorized by its law.” In the third instance, if there is no determination by a state authority of the question of which slate was lawfully appointed, then the two chambers must
