Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress
electoral votes from Arkansas and Louisiana. Nonetheless, the number of electoral votes allocated to Arkansas and Louisiana evidently were included in “the whole number of electoral votes” for purposes of determining whether President Grant had received the majority required for election.[1] It should be noted that President Grant was victorious by whichever standard was used. He received 286 electoral votes out of the 352 electoral votes counted, or out of the potential 364 electoral votes if the contested votes from Arkansas and Louisiana were included in the whole number.
In 1865, by contrast, only two of the three Nevada electors cast their electoral votes. In the joint session, only two Nevada votes were counted and included in the “whole number of electoral votes.”[2] There were similar instances of votes “not given” by electors that were not included in the “whole number” of electors reported—thus reducing the so-called denominator and the “majority” needed to elect—in 1809, 1813, and 1817.
CRS has not identified any instances in which this issue has become a source of contention or was determinative of which candidate was elected. If electoral votes from a state or the District of Columbia were not available to be counted during the joint session (and if the question were raised in a timely fashion), the joint session might be called upon to address the effect of this situation on what number of votes would constitute the “majority of the whole number of Electors appointed.”
Procedures for Conducting the Joint Session
Title 3 of the U.S. Code includes provisions governing the conduct of the joint session. Section 16 of Title 3 is intended to ensure that the joint session conducts and completes its business expeditiously. As discussed below, §18 prohibits debate as well as the offering and consideration of almost all questions.[3] Section 16 provides that the joint session is to continue until the count is completed and the result announced, and limits recesses if the process of counting the votes and announcing the results becomes time-consuming. Section 16 also governs the seating of Senators, Representatives, and officials (the Clerk of the House, the Secretary of the Senate, the Members designated as tellers, and other administrative officers of the House and Senate).
Under §18, the President of the Senate is to preserve order. This authority may be interpreted as encompassing the authority to decide questions of order, but the statute is not explicit on this point. There are some instances of the presiding officer announcing decisions concerning the procedures of the joint session. Vice President Albert A. Gore, Jr., presiding over the joint session of January 6, 2001, ruled on the admissibility of objections to the receipt of electoral votes from the State of Florida, and also advised House and Senate Members that debate was not permitted and that a unanimous consent request for debate on the issue could not be entertained. He further stated that even incidental parliamentary motions, including those that only affect the actions of the House, needed the written endorsement of at least one Representative and one Senator in order to be valid. Vice President Gore also declined to entertain a point of order that no quorum
- ↑ Congressional Globe, vol. 46 (February 12, 1873), pp. 1305–1306.
- ↑ Congressional Globe, vol. 35 (February 8, 1865), pp. 668–669.
- ↑ The statute states that no question is to be “put by the presiding officer except to either House on a motion to withdraw.” The statute provides for the Senate to withdraw automatically under circumstances discussed in the section of this report titled “Objecting to the Counting of One or More Electoral Votes.” The statute, however, makes no other explicit reference to a motion to withdraw, and CRS has not identified an instance in which a vote occurred on such a motion.
