Counting Electoral Votes An Overview of Procedures

Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress

SummaryThe Constitution and federal law establish a detailed timetable following the presidential election during which time the members of the electoral college convene in the 50 state capitals and in the District of Columbia,cast their votes for President and Vice President, and submit their votes through state officials to both houses of Congress. The electoral votes are scheduled to be opened before a joint session of Congress on January 6, 2017. Federal law specifies the procedures which are to be followed at this session and provides procedures for challenges to the validity of an electoral vote. This report describes the steps in the process and precedents set in prior presidential elections governing the actions of the House and Senate in certifying the electoral vote and in responding to challenges of the validity of one or more electoral votes from one or more states. This report has been revised, and will be updated on a periodic basis to provide the dates for the relevant joint session of Congress, and to reflect any new, relevant precedents or practices.

the House and Senate are scheduled toconvene in joint sessionon January 6, 2017, for the purpose of opening the 2016presidential election electoral votes submitted by state government officials, certifying their validity, counting them, and declaring the official result of the election for President and Vice President.1This report describes the steps which precede thejoint session and the procedures set in the Constitution and statute by which the House and Senate jointly certify the results of the electoral vote. It also discusses the procedures set in law governing challenges to the validity of an electoral vote, and makes reference to the procedures followed during the joint session in 2005 by which the election of George W. Bush was certified.

Much of what follows in this report is based on the United States Constitution (particularly Article II, Section 1, and Amendment 12), and on a federal law enacted in 1887(the Electoral Count Act of 1887)and amended in 1948, now codified in Title 3 of the United States Code.2Reference is also made to congressional precedent and practice. Early congressional precedents on the counting of electoral votes, which may be found in Hinds’ and Cannon’s Precedents of the House of Representatives, are sometimes inconsistent with each other and with more recent practice. This record, coupled with disputes over the electoral count in 1877, provided the impetus for codifying procedure in the 1887 law. Precedents which pre-date the 1887 act may be primarily of historical significance, particularly to the extent that they are inconsistent with express provisions of the 1887 act, as amended.

Due to the absence of specific and persuasive authority on some issues, and in the interest of brevity, this report attempts to at least identify and present some of the possible issues and questions thathave been raised, even when not necessarily resolving them by reference to authoritative source material or decisions. The topics presented are arranged in the approximate order of their occurrence.

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