Congress's Role in Presidential Elections: Part IV

The Constitution specifies that the House and Senate count each state's electoral votes after the President of the Senate opens them during a joint session of Congress. But the Constitution does not detail how Congress - or the presiding officer - decides which votes to count if a state submits competing slates of electors. The Constitution is also silent on what happens if a lawmaker objects to a state's electoral votes as they are counted during the joint session.

Early Practice

Congress used its rule-making power piecemeal to develop a process for adjudicating disputes over a state's electoral votes. During the Republic's early years, Congress did not have a dispute adjudication process. A senator noted during the electoral count of 1809 that a state's electoral votes were not submitted in the correct form and were, therefore, defective. But Congress did not consider the objection.

Congress considered a lawmaker's objection to a state's electoral votes in 1817. During the electoral count, Rep. John W. Taylor, N.Y., objected to counting Indiana's electoral votes because it was not a state when its residents cast their ballots on Election Day in the presidential election of 1816. The House and Senate agreed to consider Taylor's objection. But they met separately to adjudicate it instead of in a joint session. The House and Senate also met separately to consider objections in 1821, 1837, 1849, and 1857.

During the 1857 electoral count, the presiding officer acknowledged that Congress could use its rule-making power to determine the process for adjudicating lawmakers' objections to states' electoral votes. Specifically, the presiding officer ruled that a joint session of Congress to count electoral votes could not "pass on the validity of the vote of a State" because the rules Congress adopted to regulate the electoral count barred lawmakers from judging the validity of a state's electoral votes. The presiding officer stated in response to a point of order that under the "concurrent order of the two houses, nothing can be done here but to count the vote by tellers, and to declare the vote thus counted to the Senate and House of Representatives sitting in this Chamber."  The presiding officer underscored Congress's power to change the process, noting that "if any further action should be taken, will devolve upon the properly constituted authorities of the country - the Senate or House of Representatives."

Joint Rule 22

Congress adopted a more formal process to regulate objections to states’ electoral votes when the House and Senate approved Joint Rule 22 in 1865. Joint Rule 22 essentially codified the prior practice in which the two chambers met separately to consider objections to a state's electoral vote(s). It stipulated that "if, upon the reading of any such certificate by the tellers, any question shall arise in regard to counting the votes therein certified, the same having been stated by the presiding officer, the Senate shall thereupon withdraw, and said question shall be submitted to that body for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such question to the House of Representatives for its decision."

Joint Rule 22 also detailed what happened after the House and Senate met separately to consider lawmakers’ objections. Specifically, it stipulated that “no question shall be decided affirmatively, and no vote objected to shall be counted, except by concurrent votes of the two Houses, which being obtained, the two Houses shall immediately reassemble, and the presiding officer shall then announce the decision of the question submitted and upon any such question there shall be no debate in either House. And any other question pertinent to the object for which the two Houses are assembled may be submitted and determined in like manner.”

Joint Rule 22 required both chambers to agree to a lawmaker's objection to exclude the disputed vote(s) from the overall count. Excluding a state's electoral votes lowers the total votes needed to win a majority of the Electoral College. The House and Senate agreed to exclude a state's electoral votes from the total votes cast under Joint Rule 22 in 1865, 1869, and 1873.

Congress established a committee comprised of senators, representatives, and members of the federal judiciary to adjudicate disputes over electoral votes during the electoral count of 1877.

The Takeaway

Congress used its rule-making power under the Constitution to establish rules to adjudicate lawmakers’ disputes over states’ electoral votes. Those rules emerged gradually and have varied over the years. But they have consistently required the House and Senate to adjudicate disputes over states’ electoral votes separately instead of in joint session.