Of possible interest is this Congressional Research Report.
Procedures for Conducting the Joint Session Title 3 of the U.S. Code includes provisions governing the conduct of the joint session. Section 16 of Title 3 is intended to ensure that the joint session conducts and completes its business expeditiously. As discussed below, §18 prohibits debate as well as the offering and consideration of almost all questions.11 Section 16 provides that the joint session is to continue until the count is completed and the result announced, and limits recesses if the process of counting the votes and announcing the results becomes time-consuming. Section 16 also governs the seating of Senators, Representatives, and officials (the Clerk of the House, the Secretary of the Senate, the Members designated as tellers, and other administrative officers of the House and Senate).
Under §18, the President of the Senate is to preserve order. This authority may be interpreted as encompassing the authority to decide questions of order, but the statute is not explicit on this point. There are some instances of the presiding officer announcing decisions concerning the procedures of the joint session. Vice President Albert A. Gore, Jr., presiding over the joint session of January 6, 2001, ruled on the admissibility of objections to the receipt of electoral votes from the State of Florida, and also advised House and Senate Members that debate was not permitted and that a unanimous consent request for debate on the issue could not be entertained. He further stated that even incidental parliamentary motions, including those that only affect the actions of the House, needed the written endorsement of at least one Representative and one Senator in order to be valid. Vice President Gore also declined to entertain a point of order that no quorum was present because the point of order had not been endorsed by one Member from each chamber.12
Objecting to the Counting of One or More Electoral Votes
Section 15 establishes a procedure for making and acting on objections to the counting of one or more of the electoral votes from a state or the District of Columbia. When the certificate or equivalent paper from each state or the District of Columbia is read, “the President of the Senate shall call for objections, if any.” Any such objection must be presented in writing and must be signed by at least one Senator and one Representative. The objection “shall state clearly and concisely, and without argument, the ground thereof.” During the joint session of January 6, 2001, the presiding officer intervened on several occasions to halt attempts to make speeches under the guise of offering an objection.
When an objection, properly made in writing and endorsed by at least one Senator and one Representative, is received, each house is to meet and consider it separately. The statute states, “No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.” However, in 1873, before enactment of the law now in force, the joint session agreed, without objection and for reasons of convenience, to entertain objections with regard to two or more states before the houses met separately on any of them.
Disposing of Objections
The joint session does not act on any objections that are made. Instead, the joint session is suspended, the Senate withdraws from the House chamber, and each house meets separately to debate the objection and vote whether, based on the objection, to count the vote or votes in question. Both houses must vote separately to agree to the objection by simple majority. Otherwise, the objection fails and the vote or votes are counted. (3 U.S.C. §15 provides that “the two Houses concurrently may reject the vote or votes.”)
These procedures have been invoked twice since enactment of the 1887 law. The first was an instance of what has been called the “faithless elector” problem. In 1969, a Representative (James O’Hara of Michigan) and a Senator (Edmund S. Muskie of Maine) objected in writing to counting the vote of an elector from North Carolina who had been expected to cast his vote for Richard Nixon and Spiro Agnew, but who instead cast his vote for George Wallace and Curtis LeMay. Both chambers met and voted separately to reject the objection, so when the joint session resumed, the challenged electoral vote was counted as cast.13 In that instance, the elector whose vote was challenged was from a state that did not by law bind its electors to vote only for the candidates to whom they were pledged. In a 2020 decision, Chiafalo v. Washington,14 the Supreme Court unanimously held that a state may penalize electors who do not cast their ballots for the presidential and vice presidential candidates who won the state’s popular vote.15 According to the Court, state authority to appoint electors under Article II of the Constitution includes not only the power to condition their appointment upon a pledge to support the state’s popular vote winner; it also includes the ability to impose penalties on those electors who violate that pledge.16 At the time of the ruling, the Court identified laws in 32 states and the District of Columbia requiring electors to pledge to cast their ballots for their parties’ nominees for President and Vice President, with 15 of those states providing for sanctions on electors for noncompliance.17
The second instance related to reported voting irregularities in Ohio.18 In 2005, a Representative (Stephanie Tubbs Jones of Ohio) and a Senator (Barbara Boxer of California) objected in writing to the Ohio electoral votes. The chambers withdrew from the joint session to consider the objection, and the House and Senate each rejected the objection. When the House and Senate resumed the joint session, the electoral votes were counted as cast.19
Procedures for Considering Objections
Section 17 lays out procedures for each house to follow when debating and voting on an objection. These procedures limit debate on the objection to not more than two hours, during which each Member may speak only once and for not more than five minutes. Then “it shall be the duty of the presiding officer of each House to put the main question without further debate.” Under this provision, the presiding officer in each house held in 1969 that a motion to table the objection was not in order.20
In the House, the Speaker announced both in 1969 and 2005 that he would attempt to recognize supporters of the objection and opponents in an alternating fashion for the duration of the two-hour period. In one instance in 1969, the Speaker inquired whether a Member supported or opposed the challenge before he agreed to recognize him to speak. Members can yield to each other during debate as they can during five-minute debate in the Committee of the Whole, and many chose to do so in 2005. The Speaker also entertained unanimous consent requests to insert material in the Congressional Record.
In 1969 the Senate agreed, by unanimous consent, to a different way in which the time for debate was controlled and allocated, granting one hour each to the majority and minority leaders and authorizing them to yield not more than five minutes to any Senator seeking recognition to speak.21 However, in 2005, the five-minute debate prescribed in the statute was followed and the presiding officer entertained requests to insert statements into the Congressional Record.
Basis for Objections
The general grounds for an objection to the counting of an electoral vote or votes would appear from the federal statute and from historical sources to be that such vote was not “regularly given” by an elector, and/or that the elector was not “lawfully certified” according to state statutory procedures. The statutory provision first provides in the negative that “no electoral vote ... regularly given by electors whose appointment has been lawfully certified ... from which but one return has been received shall be rejected” (3 U.S.C. §15). The provision then reiterates for clarity22 that both houses concurrently may reject a vote when not “so regularly given” by electors “so certified” (3 U.S.C. §15). It should be noted that the word lawfully was expressly inserted by the House in the Senate legislation (S. 9, 49th Congress) before the word certified.23 Such addition arguably provides an indication that Congress thought it might, as grounds for an objection, question and look into the lawfulness of the certification under state law.
The objection that votes were not “regularly given” may, in practice, subsume the objection that the elector was not “lawfully certified,” because a vote given by one not “lawfully certified” may arguably be other than “regularly given.” Nevertheless, the two objections are not necessarily the same. In the case of the “faithless elector” in 1969, described above, the elector was apparently “lawfully certified” by the state, but the objection raised was that the vote was not “regularly given” by such elector. In the above-described 2005 case, the objection was also based on the grounds that the electoral votes “were not, under all of the known circumstances, regularly given.”
Receipt of Two Certificates from the Same State
Influenced by its historical experience prior to 1887, Congress was particularly concerned in the statute of 1887 with the case of two lists of electors and votes being presented to Congress from the same state. Three different contingencies appear to be provided for in the statute for two lists being presented. In the first instance, two lists would be proffered, but the assumption presented in the law is that only one list would be from electors who were determined to be appointed pursuant to the state election contest statute (as provided for in 3 U.S.C. §5), and that in such case, only those electors should be counted. In the second case, when two lists were proffered as being from two different state authorities who arguably made determinations provided for under 3 U.S.C. §5 (a state statutory election contest determined at least six days prior to December 14, the winner of the state presidential election), the question of which state authority is “the lawful tribunal of such State” to make the decision (and thus the acceptance of those electors’ votes) shall be decided only upon the concurrent agreement of both houses “supported by the decision of such State so authorized by its law.” In the third instance, if there is no determination by a state authority of the question of which slate was lawfully appointed, then the two chambers must agree concurrently to accept the votes of one set of electors; but the two chambers may also concurrently agree not to accept the votes of electors from that state.
When the two houses disagree, then the statute states that the votes of the electors whose appointment was certified by the governor of the state shall be counted. It is not precisely clear whether this provision for resolving cases in which the House and Senate vote differently applies only to the last two situations (that is, when either two determinations have allegedly been made under state contest law and procedure, or no such determination has been made); or, instead, also when only one such determination is present. Although this section of the statute is not free from doubt, its structure and its relationship to §5 (and to give effect to §5) seem to indicate that when there is only one determination by the state made in a timely fashion under the state’s election contest law and procedures (even when there are two or more lists or slates of electors presented before Congress), then Congress shall accept that state determination (3 U.S.C. §15) as “conclusive” (3 U.S.C. §5). By this interpretation, the language providing that if the House and Senate split, the question shall be decided in favor of the choice certified by the governor, may not have been intended to be applicable to cases covered by the first clause in the statute in which only one slate or group has been determined, in a timely fashion, to be the electors through the state’s procedures for election contests and controversies. Hinds’ Precedents of the House of Representatives suggests that when a state has settled the matter “in accordance with a law of that state six days before the time for the meeting of electors,” then a controversy over the appointment of electors in that state “shall not be a cause of question in the counting of the electoral vote by Congress.”24 It should be noted that Hinds’ cites no precedent or ruling, but merely paraphrases the statute, and it seems likely that this issue of the lawfulness of the determination and certification by a state could be raised and dealt with in the joint session.25
Precedent subsequent to the statute’s original enactment in 1887 has been sparse. There appears only to have been one example, in 1961, when the governor of the state of Hawaii first certified the electors of Vice President Richard M. Nixon as having been appointed, and then, due to a subsequent recount which determined that Senator John F. Kennedy had won the Hawaii vote, certified Senator Kennedy as the winner. Both slates of electors had met on the prescribed day in December, cast their votes for President and Vice President, and transmitted them according to the federal statute. This was the case even though the recount was apparently not completed until a later date, that is, not until December 28.26 The presiding officer, that is, the President of the Senate, Vice President Nixon, suggested “without the intent of establishing a precedent” that the latter and more recent certification of Senator Kennedy be accepted so as “not to delay the further count of electoral votes.” This was agreed to by unanimous consent.27
Electoral Vote Timetable and Subsequent Action
Congress established the timetable for certification, transmission, review, and approval of the electoral votes to avoid a repetition of the extraordinary delay incident to the electoral vote controversy surrounding the 1876 presidential election. In the event that no candidate has received a majority of the electoral votes for President, the election is ultimately to be decided by the House of Representatives in which the names of the three candidates receiving the most electoral votes for President are considered by the House, with each state having one vote. In the event that no candidate receives a majority of the electoral votes for Vice President, the names of the two candidates receiving the highest number of electoral votes for that post are submitted to the Senate, which elects the Vice President by majority vote of the Senators. The development and current practices for election of the President and Vice President by Congress specified in the Constitution and law are discussed in detail in CRS Report RL32695, Election of the President and Vice President by Congress: Contingent Election, by Thomas H. Neale.
