Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress
if that determination is completed under this procedure at least six days before the electors are to meet to vote, such determination is to be considered “conclusive” as to which electors were appointed on election day (3 U.S.C. §5).[1] As explained below, the electors vote on December 14, 2020, so the last day for making a final determination was December 8, 2020.
Certification by the Governor
The governor of each state is required by federal law to send to the Archivist of the United States, by registered mail and under state seal, “a certificate of such ascertainment of the electors appointed,” including the names and numbers of votes for each person for whose appointment as elector any votes were given (3 U.S.C. §6). Governors must send certificates “as soon as practicable” after the “final ascertainment” of the appointment of the electors, or “as soon as practicable” after the “final determination of any controversy or contest” concerning such election under its statutory procedure for election contests.
Duplicate Certificates to Electors
On or before December 14, 2020, the governor of each state is required to deliver to the electors of the state six duplicate-originals of the certificate sent to the Archivist of the United States under state seal (3 U.S.C. §6).
Meetings of Electors to Cast Votes
The electors of each state meet at the place designated by that state on the first Monday after the second Wednesday in December (December 14, 2020) to cast their votes for President and Vice President of the United States (U.S. Constitution, Amendment 12; 3 U.S.C. §§7–8).
Electors’ Certifications of Votes
After the electors have voted in each state, they make and sign six certificates of their votes containing two distinct lists, one being the votes for President and the other the votes for Vice President. The law instructs the electors to attach to these lists a certificate furnished to them by the governor; to seal those certificates and to certify on them that these are all of the votes for President and Vice President; and then to send one certificate to the President of the Senate and two certificates to the secretary of state of their state (one to be held subject to the order of the President of the Senate). On the day after their meeting (December 15, 2020), the electors are to forward by registered mail two of the certificates to the Archivist of the United States (one to be held subject to the order of the President of the Senate), and one to the federal judge in the district where the electors have assembled (3 U.S.C. §§9–11).
Congressional Demand for Certificates
If no certificates of votes or lists have been received by the President of the Senate or the Archivist from electors by the fourth Wednesday in December (December 23, 2020), then the
- ↑ See, e.g., Bush v. Gore, 531 U.S. 98, 110 (2000) (per curiam) (observing that 3 U.S.C. §5 “requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed” six days prior to the electors meeting to vote). The concurrence further states that 3 U.S.C. §5 “contains a principle of federal law that would assure finality of the State’s determination if made pursuant to a state law in effect before the election.” Id. at 113 (Rehnquist, C.J., concurring) (quoting Bush v. Palm Beach Cnty. Canvassing Bd., 531 U.S. 70, 78 (2000)) (internal quotations omitted).
