Congress's Role in Presidential Elections: Part II

The Constitution gives Congress an important role in presidential elections. While it stipulates that electors from each state shall elect the president and lets each state decide how to select those electors, the Constitution empowers Congress to determine when states choose their electors (on Election Day) and when those electors meet to vote for president and vice president (on Elector Balloting Day). The Constitution also requires that Congress count electors’ votes in a joint session of the House of Representatives and Senate presided over by the Senate’s presiding officer (on Electoral Count Day).

However, the Constitution does not establish rules regulating what happens on Electoral Count Day. It instead lets Congress decide how the electoral vote unfolds in practice. The rules regulating Electoral Count Day emerged over time as lawmakers clarified the vice president's role in the process, streamlined the process for adopting new rules, and instituted a system for adjudicating disputes over contested electoral votes.

The Presiding Officer

Vice presidents – and the president pro tempore who presides over the Senate in the vice president’s absence – have interpreted their role on Electoral Count Day differently. For example, Vice President Thomas Jefferson ignored technical irregularities in Georgia's electoral votes. He counted them for himself and Aaron Burr on Elector Count Day after the 1800 presidential election. By doing so, Jefferson ensured that he and Burr each received a majority of electors' votes and would advance to a runoff election in the House. Had Jefferson not counted Georgia's electoral votes, no candidate would have received a majority of electors' votes. John Adams and Charles C. Pinckney would have also advanced to a runoff election in the House along with Jefferson and Burr.

While Jefferson did not cite any rules to justify his decision to count Georgia's votes despite their irregularities, vice presidents and presidents pro tempore after him routinely cited rules to justify their actions when presiding over the electoral count. For example, the vice president excluded two states' electors from the total number of electoral votes in 1865. To justify his decision, the vice president cited a joint resolution passed by Congress to establish rules regulating the electoral count. When a lawmaker objected that the president had not yet notified Congress that he signed the resolution into law, the vice president reassured the House and Senate that “the fact of the approval of the President is within the knowledge of the Chair, and in consequence of that knowledge the Chair has seen fit to withhold the returns of the States in question.”

In 1869, the president pro tempore - presiding over the electoral count in the vice president’s absence - used his discretion to entertain some points of order but not others. And he refused to recognize lawmakers to appeal his rulings. The Speaker of the House concurred with the president pro tempore's decision not to entertain appeals. "It is impossible in a joint convention that there should be an appeal from the ruling of the Chair, because it could not be entertained by the presiding officer. There never has been an appeal in any joint convention of Congress." The vice president refused to entertain appeals during the electoral count of 1873 based on a joint resolution approved by the House and Senate. The resolution stipulated, “The President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw.”

The president pro tempore suggested he had no statutory power to act during the electoral count of 1885. After announcing the results, the president pro tempore stated, “And the President of the Senate makes this declaration only as a public statement in the presence of the two Houses of Congress of the contents of the papers opened and read on this occasion, and not as possessing any authority in law to declare any legal conclusion whatever.”

The Takeaway

The Constitution requires that Congress count electors’ votes in a joint session of the House and Senate presided over by the Senate’s presiding officer (e.g., the vice president or president pro tempore). But it is silent on the rules that regulate the joint session. Congress - and the presiding officer - developed those rules over time instead.