Congress's Role in Presidential Elections: Part V
The Constitution regulates presidential elections in three ways. First, it addresses how and when voters choose electors on Election Day. Second, it details what those electors do on Elector Balloting Day. Third, it requires Congress to count electors’ votes on Electoral Count Day.
The Constitution empowers Congress to decide how Electoral Count Day unfolds in practice. Specifically, Article I, section 5, clause 2 allows lawmakers to determine the rules that regulate their proceedings, including how they count states’ electoral votes and the process for adjudicating disputes over those votes.
Congress initially adopted electoral count rules for each presidential election by passing a resolution. The rules detailed in the resolution only applied to that election’s Electoral Count Day. Lawmakers had to pass additional resolutions to establish rules governing future electoral counts.
However, Congress opted for a different approach in 1865. That year, it adopted Joint Rule 22, establishing electoral count rules for multiple presidential elections. The rule lapsed after the 1873 electoral count.
Congress replaced the expired Joint Rule 22 in 1877 by passing legislation “to provide for and regulate the counting of votes for President and Vice-President, and the decision of questions arising thereon." But unlike the expired rule, the President signed the new electoral count rules into law.
The new law required the House and Senate to meet in joint session at 1 pm “on the first Thursday in February” to count states’ electoral votes. It stipulated that the President of the Senate would preside over the electoral count. It directed the House and Senate to appoint two tellers each. It tasked the tellers with recording the electoral votes as the presiding officer opened them “in the alphabetical order of the States, beginning with the letter A.”
The 1877 law established a formal process for adjudicating disputes over a state's electoral votes. It stipulated that "every objection shall be made in writing." It required the support of at least one House member and one senator. The House and Senate would adjudicate objections separately and for no more than two hours. Both the House and the Senate had to agree to reject a state’s electoral vote(s).
The law also created an electoral commission to determine which electoral votes to count when a state submitted multiple returns. The commission was comprised of five House members, five senators, and five Supreme Court associate justices. The 1877 law barred Congress from abolishing the commission or removing the lawmakers serving on it once appointed.
The Electoral Count Act of 1887
Congress again altered its rules for counting electoral votes on Electoral Count Day when it enacted the Electoral Count Act of 1887 (Public Law 49-90; ECA). Like Congress’s previous efforts in this space - Joint Rule 22 and the 1877 law - the ECA established electoral count rules for multiple presidential elections. It also established procedures for adjudicating lawmakers’ disputes over a state’s electoral votes.
Elector Balloting Day
The ECA stipulates when Elector Balloting Day happens. Specifically, each state’s electors “shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”
The ECA stipulates that states send their electoral vote results to the President of the Senate (i.e., the vice president). It also requires states to transmit copies of the results to their secretary of state, the Archivist of the United States, and to the federal district judge in the district where the electors voted.
Electoral Count Day
As amended in 1948, the ECA requires Congress to convene at 1 pm on January 6, "succeeding every meeting of the electors." It directs the Senate (i.e., the vice president or president pro tempore) and the House (i.e., the Speaker of the House) to each appoint two lawmakers to serve as tellers during the electoral count. The tellers will count each state's votes after the vice president/President pro tempore opens them (in alphabetical order).
The ECA also establishes a formal process for adjudicating disputes over a state's electoral votes. The vice president calls for objections to a state's electoral vote(s) after opening them but before the tellers count them. The law’s only requirements for objections are that lawmakers submit them in writing and that they are signed by at least one House member and one senator.
The ECA stipulates that the joint session of Congress takes a temporary recess whenever the required number of lawmakers submit an objection to a state's electoral vote(s) in writing. The House and Senate then reconvene to consider the objection separately. The House and Senate reconvene in joint session after having considered the objection. If both chambers agree to the objection, the electoral vote(s) in question are excluded from the overall electoral count. However, the disputed electoral votes are counted if only one chamber agrees to the objection.
The ECA also establishes rules to regulate each chamber’s consideration of the objection. Specifically, the statute limits total debate time in each chamber to two hours. During that time, representatives and senators may give only one speech each. And they can speak for up to five minutes.
The Takeaway
The Constitution empowers Congress to determine how Electoral Count Day unfolds in practice. Congress used that power ad hoc until 1865, when it first approved electoral count rules to regulate multiple presidential elections, and 1877 when it first adopted rules by passing legislation that the President signed into law. Lawmakers modeled the Electoral Count Act of 1887 on these previous efforts.