Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress
The House and Senate are scheduled to convene in joint session on January 6, 2021, for the purpose of opening the 2020 presidential election electoral votes submitted by state government officials, certifying their validity, counting them, and declaring the official result of the election for President and Vice President.[1] This report describes the steps that precede the joint session, and the procedures set forth in the Constitution and federal statute by which the House and Senate jointly certify the results of the electoral vote. It also discusses the procedures set in law governing challenges to the validity of an electoral vote.
Much of what follows in this report is based on the United States Constitution (particularly Article II, Section 1, and Amendment 12) and on the Electoral Count Act of 1887, which was originally enacted in 1887 and, in 1948, was both amended and codified in Title 3 of the United States Code.[2] This report also references congressional precedent and practice. Early congressional precedents on the counting of electoral votes, which may be found in Hinds’ and Cannon’s Precedents of the House of Representatives, are sometimes inconsistent with each other and with more recent practice. This record, coupled with disputes over the electoral count in 1877, provided the impetus for codifying procedure in the 1887 law. Precedents that pre-date the 1887 act may be primarily of historical significance, particularly to the extent that they are inconsistent with express provisions of the 1887 act, as amended.
Due to the absence of specific and persuasive authority on some issues, and in the interest of brevity, this report attempts to at least identify and present some of the possible issues and questions that have been raised, even when not necessarily resolving them by reference to authoritative source material or decisions. The topics presented are arranged in the approximate order of their occurrence.
Actions Leading Up to the Joint Session
Appointment of Electors: Election Day
The Constitution provides that each state “shall appoint” electors for President and Vice President in the manner directed by its state legislature (Article II, Section 1, clause 2), on the day determined by Congress (Article II, Section 1, clause 3). Congress has determined in federal law that the “electors of President and Vice President shall be appointed, in each State” on Election Day, that is, the “Tuesday next after the first Monday in November” every fourth year (on November 3, 2020) (3 U.S.C. §1).
Final State Determination of Election Contests and Controversies: “Safe Harbor”
Congress has, since 1887, sought to place the responsibility for resolving presidential election contests and challenges on the states. Federal law, in what is known as the “safe harbor” provision, provides that if a state, under its established statutory procedure, has made a “final determination of any controversy or contest” relative to the presidential election in the state, and
- ↑ The permanent statutory date for the joint session of Congress to count the electoral votes is January 6 of the year immediately after the meeting of the electors (3 U.S.C. §15). This date can be changed by Congress by law. See, e.g., P.L. 112-228, H.J.Res. 122, 112th Congress (2011–2012).
- ↑ 3 U.S.C. §§3–21. See 24 Stat. 373, ch. 90, 49th Cong., February 3, 1887; 62 Stat. 671, P.L. 771, June 25, 1948, enacting Title 3, United States Code, into positive law.
