Congress's Role in Presidential Elections: Part I

The juxtaposition of last week’s third anniversary of the January 6 attack on the Capitol and next week’s Iowa caucuses raises essential questions about Congress’s role in past presidential elections and how its members will perform that role at the end of the 2024 presidential election. Three years ago, on January 6, supporters of former President Donald Trump broke into the Capitol as lawmakers reviewed and counted electoral votes in the 2020 presidential election using established rules and practices. The attackers wanted to stop lawmakers from declaring Trump’s opponent in the election - Joe Biden - its winner. 

While the procedures lawmakers used to object to two states’ electoral votes (Arizona and Pennsylvania) on the day of the attack were authorized by law, the attack nevertheless prompted lawmakers to call for new rules to regulate how Congress conducts future electoral counts to make similar attacks less likely. Congress subsequently approved the Electoral Count Reform Act (ECRA) in December of 2022 as part of the Consolidated Appropriations Act of 2023 (Public Law 117-328). The new law modifies procedures established by the Electoral Count Act of 1887 (ECA; Public Law 49-90). The new rules will be operative at the end of the 2024 presidential election. The Iowa caucuses mark the beginning of that contest and Congress’s electoral count and the presidential inauguration mark its end. 

Examining the Constitution, Congress’s early practice and the provisions of the ECA and ECRA provide insight into what was happening procedurally inside the Capitol on January 6, 2021, and helps make sense of what could happen when lawmakers gather to count the votes in 2025. This is the first part of a seven-part series analyzing the rules and procedures governing how Congress counts electoral votes at the end of a presidential election.

The Constitution

The Constitution regulates presidential elections in three ways. First, the Constitution addresses how and when voters choose electors on Election Day. Second, the Constitution details what those electors do on Elector Balloting Day. Third, the Constitution stipulates who counts electors’ votes on Electoral Count Day.

Election Day

The Constitution (Article II, section 1, clause 3) stipulates that the Electoral College chooses the president and vice president by majority vote. 

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The Constitution stipulates that the House chooses the president in the event of a tie or if no candidate has a majority of votes in the Electoral College. It initially required the House to choose the president out of the top five candidates receiving the most votes if no single candidate gets a majority of votes in the Electoral College. However, the Twelfth Amendment lowered the number of candidates that advance to the House in the event of a tie to three. The Constitution requires the Senate to choose between the top two candidates for vice president if no vice presidential candidate receives a majority of votes in the Electoral College. When choosing the president, the House votes by state, with state delegations having one vote each. Members from at least two-thirds of the states must be present for the House to vote for president. Two-thirds of “the whole number of Senators” must be present for the Senate to vote for vice president. A majority is needed to elect a president and vice president.

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The Electoral College is comprised of electors from each state. The number of House districts and Senate seats determines how many electors (i.e., votes) each state gets in the Electoral College.

The Constitution assigns the states and Congress different roles in choosing presidential and vice presidential electors. The Electors Appointment Clause (Article II, section 1, clause 2) empowers the states (i.e., state legislatures) to decide how they select their electors. But the Presidential Vote Clause (Article II, section 1, clause 4) empowers Congress to determine when states choose their electors (i.e., when Election Day occurs). Congress passed the first bill to regulate presidential elections in 1792. Election Day is presently scheduled for the first Tuesday after the first Monday in November every four years.

All fifty states and the District of Columbia presently choose their electors by popular vote. But state legislatures chose presidential electors initially. Most states transitioned to a popular vote selection process between 1816 and 1824. By the 1824 presidential election, only six state legislatures (Vermont, New York, Delaware, South Carolina, Georgia, and Louisiana) selected their presidential electors. The rest chose their electors via popular vote. In the 1828 presidential election, only two states (Delaware and South Carolina) selected their electors by popular vote. And all but one state (South Carolina) chose their electors by popular vote in the 1832 presidential election. 

The Supreme Court affirmed states’ constitutional power to decide how to select their electors in McPherson v. Blacker (1892). But the Court also signaled in three other landmark cases that it does not see states’ power over the elector-selection process as absolute. In Ex parte Yarbrough (1884), the Court acknowledged that the federal government has a legitimate interest in protecting the integrity of federal elections. In Burroughs & Cannon v. United States (1934), the Court decided that Congress could enact legislation to combat corruption in presidential elections. The Court reasoned in Williams v. Rhodes (1968) that the Equal Protection Clause of the Fourteenth Amendment limits states’ discretion in the elector-selection process.

Notwithstanding these cases, states retain significant power over the elector-selection process. For example, some states require their presidential electors to support the candidate they pledged to back before the election and impose fines for electors who vote for someone else instead. The Supreme Court ruled in Ray v. Blair (1952) that a political party could require aspiring electors to pledge to support the party’s nominee. Most recently, the Court ruled in Chiafalo v. Washington (2020) that the Constitution does not prevent states from penalizing electors if they violate their pledge to vote for the presidential candidate they committed to support. And some states have adopted different methods for allocating their electoral votes to presidential candidates on Election Day. Most states - and the District of Columbia - allocate their electoral votes on a winner-take-all basis. But Maine and Nebraska allocate their electoral votes using the district system. Maine and Nebraska award two at-large electors to the candidate that wins the state’s popular vote. They then award one electoral vote per district to the candidate who wins the popular vote in each of the state’s congressional districts. And states signing on to the National Popular Vote Interstate Compact signal that they want to award their electoral votes to the presidential candidate who wins the most votes nationwide on Election Day.

Elector Balloting Day

The Constitution stipulates what happens after states select their presidential electors. The Electoral College Clause (Article II, section 1, clause 3)  – amended by the Twelfth Amendment - stipulates that once electors are selected, they “shall meet in their respective states, and vote by ballot for President and Vice President.” As amended by the Twelfth Amendment, the Constitution (Article II, section 1, clause 4) empowers Congress to decide when electors meet in each state to cast ballots for president and vice president (i.e., Elector Balloting Day). After casting their ballots, the electors tabulate the results, “sign and certify, and transmit [them] sealed to the seat of the Government of the United States, directed to the President of the Senate.”

Electoral Count Day

The Constitution (Article II, section 1, clause 3) - as amended by the Twelfth Amendment - stipulates that the “President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” However, it does not specify how the votes are counted or what happens when the House and Senate meet in joint session on Electoral Count Day to count them.

The Constitution instead leaves it up to Congress to decide how the joint session to count electoral votes unfolds in practice. Specifically, its Rule-making Clause (Article I, section 5, clause 2) stipulates, “Each House may determine the Rules of its Proceedings.” This clause empowers the House and Senate to determine their rules and procedures. The Supreme Court ruled in 1892 that, absent an explicit constitutional provision stipulating otherwise, the House and Senate are free to adopt whatever rules their members want under this plenary grant of rule-making power. The House and Senate have used this plenary grant of power to adopt the rules and practices that regulate their proceedings on Electoral Count Day.

The Takeaway

The Constitution gives states and Congress different roles in presidential elections. For example, the Constitution empowers states to determine how to select their presidential electors on Election Day. But it empowers Congress to determine when Election Day occurs. The Constitution similarly empowers Congress to determine when Elector Balloting Day occurs. And it requires Congress and the vice president to open and count the electoral votes on Electoral Count Day. While some of these powers are ambiguous, the Constitution empowers members of Congress to adopt rules and procedures to resolve some of that ambiguity.