Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress
agree concurrently to accept the votes of one set of electors; but the two chambers may also concurrently agree not to accept the votes of electors from that state.
When the two houses disagree, then the statute states that the votes of the electors whose appointment was certified by the governor of the state shall be counted. It is not precisely clear whether this provision for resolving cases in which the House and Senate vote differently applies only to the last two situations (that is, when either two determinations have allegedly been made under state contest law and procedure, or no such determination has been made); or, instead, also when only one such determination is present. Although this section of the statute is not free from doubt, its structure and its relationship to §5 (and to give effect to §5) seem to indicate that when there is only one determination by the state made in a timely fashion under the state’s election contest law and procedures (even when there are two or more lists or slates of electors presented before Congress), then Congress shall accept that state determination (3 U.S.C. §15) as “conclusive” (3 U.S.C. §5). By this interpretation, the language providing that if the House and Senate split, the question shall be decided in favor of the choice certified by the governor, may not have been intended to be applicable to cases covered by the first clause in the statute in which only one slate or group has been determined, in a timely fashion, to be the electors through the state’s procedures for election contests and controversies. Hinds’ Precedents of the House of Representatives suggests that when a state has settled the matter “in accordance with a law of that state six days before the time for the meeting of electors,” then a controversy over the appointment of electors in that state “shall not be a cause of question in the counting of the electoral vote by Congress.”[1] It should be noted that Hinds’ cites no precedent or ruling, but merely paraphrases the statute, and it seems likely that this issue of the lawfulness of the determination and certification by a state could be raised and dealt with in the joint session.[2]
Precedent subsequent to the statute’s original enactment in 1887 has been sparse. There appears only to have been one example, in 1961, when the governor of the state of Hawaii first certified the electors of Vice President Richard M. Nixon as having been appointed, and then, due to a subsequent recount which determined that Senator John F. Kennedy had won the Hawaii vote, certified Senator Kennedy as the winner. Both slates of electors had met on the prescribed day in December, cast their votes for President and Vice President, and transmitted them according to the federal statute. This was the case even though the recount was apparently not completed until a later date, that is, not until December 28.[3] The presiding officer, that is, the President of the Senate, Vice President Nixon, suggested “without the intent of establishing a precedent” that the latter and more recent certification of Senator Kennedy be accepted so as “not to delay the further count of electoral votes.” This was agreed to by unanimous consent.[4]
- ↑ Asher C. Hinds, Hinds’ Precedents of the House of Representatives of the United States (Washington: GPO, 1907–1908), vol. 3, §1914, p. 202 (referring only to the 1887 statute).
- ↑ For further discussion of 3 U.S.C. §15, see Edward B. Foley, Preparing for a Disputed Presidential Election: An Exercise in Election Risk Assessment and Management, 51 Loy. U. Chi. L.J. 309 (2019); Stephen A. Siegel, The Conscientious Congressman’s Guide to the Electoral Count Act of 1887, 56 Fla. L. Rev. 541 (2004); L. Kinvin Wroth, Election Contests and the Electoral Vote, 65 Dick. L. Rev. 321 (1961). See also Edward B. Foley, Congress Must Fix This Election Law—Before It’s Too Late, Wash. Post, (Dec. 1, 2020), https://www.washingtonpost.com/opinions/2020/12/01/congress-must-fix-this-election-law-before-its-too-late/ (characterizing the language of 3 U.S.C. §15 as “impenetrable or, at the very least, indeterminate.”).
- ↑ Facts on File, Weekly World News Digest, vol. XX, no. 1052, December 22–28, 1960, p. 469.
- ↑ See discussion in Deschler’s Precedents, ch. 10, §3.5, pp. 12–13.
