Congress's Role in Presidential Elections: Part III

The Constitution requires that Congress count each state’s electoral votes in a joint session of the House and Senate presided over by the President of the Senate (i.e., the vice president or president pro tempore) on Electoral Count Day. But it doesn’t detail the presiding officer’s role in the electoral count or the rules that govern the joint session over which he presides. The Constitution instead empowers Congress to determine how the electoral count unfolds in practice.

The Rules

Congress initially determined the rules regulating specific electoral counts by passing a resolution. Under that approach, the House and Senate appointed lawmakers from each chamber to a joint committee and tasked them with proposing rules. Each chamber then approved the joint committee's proposal (with or without changes) before the House and Senate convened in a joint session to count electors' votes.

Congress adopted a different approach in 1865. That year, the House and Senate approved Joint Rule 22, which governed the electoral count after multiple presidential elections instead of just one. Lawmakers hoped that detailing when, where, and how Congress would conduct future electoral counts would help them avoid the confusion of the 1857 electoral count.

The rule directed the House and Senate to assemble “in the Hall of the House of Representatives at the hour of 1 o’clock p.m., on the second Wednesday in February” following a presidential election. It required the House and Senate to appoint tellers after they assembled “to whom shall be handed, as they are opened by the President of the Senate, the certificates of the electoral votes.” The tellers’ job was to read and record the electoral votes. Once they had read and recorded every vote, the rule directed the President of the Senate to “announce the state of the vote and the names of the persons, if any, elected, which announcement shall be deemed a sufficient declaration of the persons elected President and Vice-President of the United States.”

Joint Rule 22 regulated the electoral counts in 1865, 1869, and 1873. Congress did not reauthorize the joint rule in 1875. Lawmakers adopted a different approach to establishing rules regulating Electoral Count Day for the electoral count of 1877. Specifically, Congress approved rules to regulate the electoral count by enacting a statute that the President signed into law.

The Takeaway

The Constitution requires Congress to count electors' votes after a presidential election. But it lets lawmakers determine how the electoral count unfolds. At first, the House and Senate established rules for specific electoral counts by passing a resolution every four years. But Congress eventually streamlined its approach by approving a resolution for multiple electoral counts instead of just one. It adopted the current practice of establishing rules by passing a law that had to be signed by the President (or passed over the President's veto) shortly after that.