Blog

The Constitution sets up a framework for presidential elections—the state-by-state process now known as the Electoral College—but leaves the details to state legislatures and to Congress. A federal law passed in 1887, the Electoral Count Act, fills in the details. According to that law, Congress assembles at 1 p.m. on January 6 to count the electoral votes for President and Vice President.

The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer.

Legally, this is when the presidential election is over—when the votes are counted and the result announced in a joint session of Congress. Members have the opportunity to object, debate, and vote on whether to accept or reject each state’s votes.

Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; … the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States….

Objections are only acted on if made in writing by at least one Representative and one Senator together. If that happens, the Senate goes back to its own chamber and both bodies debate and vote on the objection. A slate or vote is only thrown out if both bodies vote to reject it.

Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives. … the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.

The purpose of this statute is to shift responsibility to the states. Congress binds itself to accept the results submitted by state authorities, and both chambers of Congress must agree that a slate or vote is invalid before it can be rejected.

In the event that competing slates of electors are submitted from a single state, Congress is required to accept the one that comes from that state’s government, particularly if signed by a state’s governor.

If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors who are shown by the determination mentioned in section 5 of this title to have been appointed…. But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted.

As soon as both the House and Senate have voted on a particular dispute, they are to “immediately” return to counting the rest of the votes. This is the process set to play out on January 6, 2021, in the newly elected Congress.

This process was established after the messiest presidential election in history—the 1876 election between Republican-nominee Rutherford B. Hayes and Democratic-nominee Samuel Tilden. On election night, it appeared that Tilden had defeated Hayes. Margins were close in Florida, Louisiana, and South Carolina, with corresponding disputes over who controlled those state governments. In the end, each state submitted competing slates of electoral votes signed by various officials or not signed at all.

Some Hayes supporters argued that the President of the Senate had complete control over the process. That would have been Vice President of the United States Henry Wilson (a Republican chosen as running mate by Ulysses Grant), except that he had died on November 22, and so Sen. Thomas Ferry (another Republican, the Senate Majority Leader) was filling that role. Other Hayes supporters, and pretty much everyone else, argued that while the President of the Senate was the presiding officer, the power was in Congress.

In the end, Congress established a bi-partisan, bi-cameral commission chaired by a Justice of the Supreme Court. It accepted the Republican electors from each contested state, acting on party lines, and Hayes became President. The process was blasted as “the fraud of the century” (a play on the fact that it was the nation’s centennial that year). To prevent another such situation, where it appeared Congress had chosen the President on party lines, they enacted the Electoral Count Act a decade later.