jury,[1] shall be held “promptly,” and shall be completed at least six days before the time fixed for the meeting of the electors.[2]
Challenges to Electoral Count in Congress
The Twelfth Amendment to the United States Constitution provides that Congress shall meet in joint session to count and certify the electoral votes for President. Implicit in the express authority of Congress to count the electoral votes and to formally announce the winner of the presidential election, has been the authority (and practical necessity) to determine which electoral votes to count.
When Congress meets to count the electoral votes in January following the meeting of the presidential electors in December, objections may be made to the counting of electoral votes from a particular state. Federal law, known as the Electoral Count Act of 1887, sets forth a detailed procedure for making and acting on objections to the counting of one or more of the electoral votes.[3] When the certificate or equivalent paper from each state or the District of Columbia is read, “the President of the Senate shall call for objections, if any.” Any such objection must be presented in writing and must be signed by at least one Senator and one Representative. Furthermore, the objection “shall state clearly and concisely, and without argument, the ground thereof,” and no debate on the objection is to be made in the joint session itself. When a properly made objection is received, the joint session is temporarily dissolved and each house is to meet to consider the objection separately. For an objection to be sustained, it must be agreed to by each house of Congress meeting separately.[4]
By way of example, due to alleged voting irregularities in the state, an objection was made to the Ohio electoral votes during the January 2005 joint session.[5] In accordance with federal law, the chambers withdrew from the joint session to consider the objection, but neither the House nor Senate agreed to accept the objection. When the House and Senate resumed in joint session, “because the two Houses have not sustained the objection,” Ohio’s electoral votes were counted as cast.[6]
Similar to an election contest in the states, it appears that the burden of proof within Congress to overcome the presumption of regularity of an officially certified election may be significant. As noted earlier, the Electoral Count Act indicates the congressional determination that the states are to be the initial arbiter of election contests for presidential electors within their respective jurisdictions. Thus the provision of the Electoral Count Act known as the “safe harbor” provision expressly provides for final and “conclusive” determinations of the election of presidential electors in the states when timely contested under established state procedures.[7]
- ↑ Va. Code Ann. § 24.2-810.
- ↑ Va. Code Ann. § 24.2-805.
- ↑ 24 Stat. 373, ch. 90 (1887); see P.L. 771, 62 Stat. 671 (1948) (now 3 U.S.C. § 15).
- ↑ 3 U.S.C. § 15. For an objection to be sustained, it must be approved by both houses by a majority vote in each house of Congress. For general information on the electoral vote count in Congress, see CRS Report RL32717, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, by Jack Maskell and Elizabeth Rybicki.
- ↑ 151 Cong. Rec. 198-199 (2005).
- ↑ 151 Cong. Rec. 242 (2005).
- ↑ 3 U.S.C. § 5. “The Electoral Count Act was a clear and unmistakable message to the States that the Congress did not want to assert original jurisdiction in election disputes involving Presidential Electors although they reserved the right
