Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress Updated December 8 2020 Congressional Research Service https crsreports congress gov RL32717 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress Summary The 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 2021 Federal law specifies the procedures for this session and 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 electoral votes 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 Congressional Research Service Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress Contents Actions Leading Up to the Joint Session 1 Appointment of Electors Election Day 1 Final State Determination of Election Contests and Controversies “Safe Harbor” 1 Certification by the Governor 2 Duplicate Certificates to Electors 2 Meetings of Electors to Cast Votes 2 Electors’ Certifications of Votes 2 Congressional Demand for Certificates 2 Archivist’s Transmittal of Certificates to Congress 3 Date for Counting Electoral Votes 3 Providing for the Joint Session 3 Venue for Counting Electoral Votes 3 Opening of the Votes 3 Reading of the Votes by House and Senate Tellers 3 Counting the Votes and Announcing the Result 4 Expediting the Process of Opening and Reading Votes 4 The Majority Required for Election 4 Procedures for Conducting the Joint Session 5 Objecting to the Counting of One or More Electoral Votes 6 Disposing of Objections 6 Procedures for Considering Objections 7 Basis for Objections 8 Receipt of Two Certificates from the Same State 8 Electoral Vote Timetable and Subsequent Action 10 Contacts Author Information 10 Congressional Research Service Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress he House and Senate are scheduled to convene in joint session on January 6 2021 for the purpose of opening the 2020 presidential 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 1 This report describes the steps that precede the joint session and the procedures set forth in the Constitution and federal 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 T Much of what follows in this report is based on the United States Constitution particularly Article II Section 1 and Amendment 12 and on the Electoral Count Act of 1887 which was originally enacted in 1887 and in 1948 was both amended and codified in Title 3 of the United States Code 2 This report also references 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 that 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 that have 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 Actions Leading Up to the Joint Session Appointment of Electors Election Day The Constitution provides that each state “shall appoint” electors for President and Vice President in the manner directed by its state legislature Article II Section 1 clause 2 on the day determined by Congress Article II Section 1 clause 3 Congress has determined in federal law that the “electors of President and Vice President shall be appointed in each State” on Election Day that is the “Tuesday next after the first Monday in November” every fourth year on November 3 2020 3 U S C §1 Final State Determination of Election Contests and Controversies “Safe Harbor” Congress has since 1887 sought to place the responsibility for resolving presidential election contests and challenges on the states Federal law in what is known as the “safe harbor” provision provides that if a state under its established statutory procedure has made a “final determination of any controversy or contest” relative to the presidential election in the state and 1 The permanent statutory date for the joint session of Congress to count the electoral votes is January 6 of the year immediately after the meeting of the electors 3 U S C §15 This date can be changed by Congress by law See e g P L 112-228 H J Res 122 112th Congress 2011-2012 2 3 U S C §§3-21 See 24 Stat 373 ch 90 49th Cong February 3 1887 62 Stat 671 P L 771 June 25 1948 enacting Title 3 United States Code into positive law Congressional Research Service 1 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress if that determination is completed under this procedure at least six days before the electors are to meet to vote such determination is to be considered “conclusive” as to which electors were appointed on election day 3 U S C §5 3 As explained below the electors vote on December 14 2020 so the last day for making a final determination was December 8 2020 Certification by the Governor The governor of each state is required by federal law to send to the Archivist of the United States by registered mail and under state seal “a certificate of such ascertainment of the electors appointed ” including the names and numbers of votes for each person for whose appointment as elector any votes were given 3 U S C §6 Governors must send certificates “as soon as practicable” after the “final ascertainment” of the appointment of the electors or “as soon as practicable” after the “final determination of any controversy or contest” concerning such election under its statutory procedure for election contests Duplicate Certificates to Electors On or before December 14 2020 the governor of each state is required to deliver to the electors of the state six duplicate-originals of the certificate sent to the Archivist of the United States under state seal 3 U S C §6 Meetings of Electors to Cast Votes The electors of each state meet at the place designated by that state on the first Monday after the second Wednesday in December December 14 2020 to cast their votes for President and Vice President of the United States U S Constitution Amendment 12 3 U S C §§7-8 Electors’ Certifications of Votes After the electors have voted in each state they make and sign six certificates of their votes containing two distinct lists one being the votes for President and the other the votes for Vice President The law instructs the electors to attach to these lists a certificate furnished to them by the governor to seal those certificates and to certify on them that these are all of the votes for President and Vice President and then to send one certificate to the President of the Senate and two certificates to the secretary of state of their state one to be held subject to the order of the President of the Senate On the day after their meeting December 15 2020 the electors are to forward by registered mail two of the certificates to the Archivist of the United States one to be held subject to the order of the President of the Senate and one to the federal judge in the district where the electors have assembled 3 U S C §§9-11 Congressional Demand for Certificates If no certificates of votes or lists have been received by the President of the Senate or the Archivist from electors by the fourth Wednesday in December December 23 2020 then the See e g Bush v Gore 531 U S 98 110 2000 per curiam observing that 3 U S C §5 “requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed” six days prior to the electors meeting to vote The concurrence further states that 3 U S C §5 “contains a principle of federal law that would assure finality of the State’s determination if made pursuant to a state law in effect before the election ” Id at 113 Rehnquist C J concurring quoting Bush v Palm Beach Cnty Canvassing Bd 531 U S 70 78 2000 internal quotations omitted 3 Congressional Research Service 2 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress President of the Senate or the Archivist if the President of the Senate is not available is directed by law to request the state’s secretary of state to immediately forward the certificates and lists held by the secretary of state and to send a special messenger to the local federal district judge to transmit the lists that are to be held by that judge 3 U S C §§12-13 Archivist’s Transmittal of Certificates to Congress At the first meeting of Congress set for January 3 2021 the Archivist of the United States is required to transmit to the two houses every certificate received from the governors of the states 3 U S C §6 Date for Counting Electoral Votes The date for counting the electoral votes is fixed by law as January 6 following each presidential election 3 U S C §15 unless the date is changed by law For example when January 6 2013 was to fall on a Sunday the date for counting the electoral votes was changed to January 4 2013 when the President signed H J Res 122 on December 28 2012 Providing for the Joint Session Venue for Counting Electoral Votes The electoral votes are counted at a joint session of the Senate and the House of Representatives meeting in the House chamber The U S Code refers to the event as a joint meeting it also has been characterized in the Congressional Record as a joint convention The joint session convenes at 1 00 p m on that day The President of the Senate is the presiding officer 3 U S C §15 The President pro tempore of the Senate has presided in the absence of the President of the Senate 4 Opening of the Votes Section 15 provides that the President of the Senate open and present the certificates of the electoral votes of the states and the District of Columbia in alphabetical order As discussed above under 3 U S C §§9-10 the electors in each state having voted are to sign seal and certify the certificates Under §11 of the same title they are to mail one such certificate to the President of the Senate and mail two others to the Archivist of the United States Reading of the Votes by House and Senate Tellers The certificate or an equivalent document from each state and the District of Columbia is to be read then by tellers previously appointed from among the membership of the House and Senate Before the joint session convenes each chamber appoints two of its Members to be the tellers The appointments are made by the presiding officers of the respective chambers based on recommendations made to them by the leaders of the two major parties The appointed tellers are often members of the House Administration and Senate Rules and Administration Committees the panels in each chamber having jurisdiction over matters relating to the election of the In January 1969 Vice President Hubert Humphrey “declined to preside over the joint session to count the electoral votes ” Deschler’s and Deschler-Brown Precedents of the United States House of Representatives 94th Cong 2nd sess H Doc 94-661 Washington GPO 1977 hereinafter Deschler’s Precedents ch 10 §2 5 p 10 4 Congressional Research Service 3 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress President and Vice President In 2017 the House tellers were Members who had been elected chair and ranking member of the House Administration Committee that Congress The Senate tellers were the chair and a Senator who would become the ranking member of the Senate Rules and Administration Committee 5 Counting the Votes and Announcing the Result After the votes of each state and the District of Columbia have been read the tellers record and count them When this process has been completed the presiding officer announces whether any candidates have received the required majority votes for President and Vice President If so that “announcement shall be deemed a sufficient declaration of the persons if any elected President and Vice President of the United States” 3 U S C §15 Expediting the Process of Opening and Reading Votes The joint session may agree to expedite this process when no controversy is anticipated In the 1997 joint meeting for example the Vice President announced “Under well-established precedents unless a motion shall be made in any case the reading of the formal portions of the certificates will be dispensed with After ascertainment has been had that the certificates are authentic and correct in form the tellers will count and make a list of the votes cast by the electors of the several States ”6 The Vice President proceeded to open the certificates in alphabetical order and passed to the tellers the certificates showing the votes of the electors in each state and the District of Columbia In each case the tellers then read counted and announced the result for each state and the District of Columbia According to the Congressional Record the joint session consumed precisely 24 minutes A similar process was followed in 2013 when according to the Congressional Record the joint session consumed 23 minutes 7 and in 2017 when it consumed 41 minutes 8 The Majority Required for Election The 12th Amendment requires the winning candidate to receive “a majority of the whole number of Electors appointed ” That number normally becomes the same as a majority of the number of electoral votes counted by the tellers One exception that has been identified occurred in 1873 when the Vice President announced that President Ulysses S Grant had received “a majority of the whole number of electoral votes ” even though he also indicated that not all of those electoral votes had been counted In that case the two houses under procedures similar to those described in the section below entitled “Objecting to the Counting of One or More Electoral Votes ” had decided not to count the 5 In 2009 the Senate tellers initially were the chair and ranking member of the Senate Rules and Administration Committee but another Senator who would become chair of the Rules and Administration Committee that Congress was later appointed in lieu of the Senator who had served as chair in the previous Congress On the first day of the 111th Congress the Vice President appointed Senator Dianne Feinstein of California and Senator Robert Bennett of Utah to serve as tellers to count the electoral votes Congressional Record daily edition vol 155 January 6 2009 p S7 On January 8 2009 the Senate agreed by unanimous consent that Senator Charles Schumer of New York would serve as a teller in lieu of Senator Feinstein Congressional Record daily edition vol 155 January 8 2009 p S186 6 Congressional Record vol 143 January 9 1997 p 297 7 Congressional Record vol 159 January 4 2013 p H49 8 Congressional Record vol 163 January 6 2017 p H190 Congressional Research Service 4 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress electoral votes from Arkansas and Louisiana Nonetheless the number of electoral votes allocated to Arkansas and Louisiana evidently were included in “the whole number of electoral votes” for purposes of determining whether President Grant had received the majority required for election 9 It should be noted that President Grant was victorious by whichever standard was used He received 286 electoral votes out of the 352 electoral votes counted or out of the potential 364 electoral votes if the contested votes from Arkansas and Louisiana were included in the whole number In 1865 by contrast only two of the three Nevada electors cast their electoral votes In the joint session only two Nevada votes were counted and included in the “whole number of electoral votes ”10 There were similar instances of votes “not given” by electors that were not included in the “whole number” of electors reported—thus reducing the so-called denominator and the “majority” needed to elect—in 1809 1813 and 1817 CRS has not identified any instances in which this issue has become a source of contention or was determinative of which candidate was elected If electoral votes from a state or the District of Columbia were not available to be counted during the joint session and if the question were raised in a timely fashion the joint session might be called upon to address the effect of this situation on what number of votes would constitute the “majority of the whole number of Electors appointed ” 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 9 Congressional Globe vol 46 February 12 1873 pp 1305-1306 Congressional Globe vol 35 February 8 1865 pp 668-669 11 The statute states that no question is to be “put by the presiding officer except to either House on a motion to withdraw ” The statute provides for the Senate to withdraw automatically under circumstances discussed in the section of this report titled “Objecting to the Counting of One or More Electoral Votes ” The statute however makes no other explicit reference to a motion to withdraw and CRS has not identified an instance in which a vote occurred on such a motion 10 Congressional Research Service 5 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress 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 12 For the full transcript of the joint session of January 6 2001 see Congressional Record vol 147 January 6 2001 pp 101-115 13 When the two chambers reconvened in joint session the Secretary of the Senate reported that the Senate had agreed to the following action “Ordered that the Senate by a vote of 33 ayes to 58 nays rejects the objection to the electoral votes cast in the State of North Carolina for George C Wallace for President and Curtis E LeMay for Vice President ” The Clerk of the House stated the results of the House action “Ordered that the House of Representatives rejects the objection to the electoral vote of the State of North Carolina submitted by the Representative from Michigan Mr O’Hara and the Senator from Maine Mr Muskie ” Congressional Record vol 115 January 6 1969 p 171 The House vote was 170-228 See also Deschler’s Precedents vol 3 chap 10 §3 6 Both houses used roll call votes to decide the question Congressional Research Service 6 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress 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 twohour 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 14 140 S Ct 2316 2020 See id at 2328 16 See id at 2319-20 See also Ray v Blair 343 U S 214 228 1952 holding that neither Article II nor the Twelfth Amendment to the Constitution prohibits the states from appointing only those electors who are committed to voting for a party’s presidential nominee but not addressing whether such state restrictions could constitutionally be enforced 17 See id at 2321-22 18 Congressional Record daily edition vol 151 January 6 2005 pp H86-H127 19 When the two chambers reconvened in joint session the Secretary of the Senate reported that the Senate had agreed to the following action “Ordered that the Senate by a vote of 1 aye to 74 nays rejects the objection to the electoral votes cast in the State of Ohio for George W Bush for President and Richard Cheney for Vice President ” The Clerk of the House then stated the results of the House action “Ordered that the House of Representatives rejects the objection to the electoral vote of the State of Ohio ” Congressional Record daily edition vol 151 January 6 2005 p H128 The House vote was 31-267 Both houses used roll call votes to decide the question 20 Deschler’s Precedents ch 10 §3 7 pp 18-20 15 Congressional Research Service 7 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress 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 Deschler’s Precedents ch 10 §3 8 pp 20-23 See Conference Report on 1887 legislation Congressional Record vol 18 January 14 1887 p 668 23 Id 21 22 Congressional Research Service 8 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress 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 Asher C Hinds Hinds’ Precedents of the House of Representatives of the United States Washington GPO 19071908 vol 3 §1914 p 202 referring only to the 1887 statute 25 For further discussion of 3 U S C §15 see Edward B Foley Preparing for a Disputed Presidential Election An Exercise in Election Risk Assessment and Management 51 LOY U CHI L J 309 2019 Stephen A Siegel The Conscientious Congressman’s Guide to the Electoral Count Act of 1887 56 FLA L REV 541 2004 L Kinvin Wroth Election Contests and the Electoral Vote 65 DICK L REV 321 1961 See also Edward B Foley Congress Must Fix This Election Law—Before It’s Too Late WASH POST Dec 1 2020 https www washingtonpost com opinions 2020 12 01 congress-must-fix-this-election-law-before-its-too-late characterizing the language of 3 U S C §15 as “impenetrable or at the very least indeterminate ” 26 Facts on File Weekly World News Digest vol XX no 1052 December 22-28 1960 p 469 27 See discussion in Deschler’s Precedents ch 10 §3 5 pp 12-13 24 Congressional Research Service 9 Counting Electoral Votes An Overview of Procedures at the Joint Session Including Objections by Members of Congress 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 Author Information Elizabeth Rybicki Coordinator Specialist on Congress and the Legislative Process L Paige Whitaker Coordinator Legislative Attorney Acknowledgments The original version of this report was co-authored by Stanley Bach formerly a CRS Senior Specialist on Congress and the Legislative Process and Jack Maskell formerly a CRS Legislative Attorney The listed coordinators are available to answer questions on the subject from congressional clients Disclaimer This document was prepared by the Congressional Research Service CRS CRS serves as nonpartisan shared staff to congressional committees and Members of Congress It operates solely at the behest of and under the direction of Congress Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role CRS Reports as a work of the United States Government are not subject to copyright protection in the United States Any CRS Report may be reproduced and distributed in its entirety without permission from CRS However as a CRS Report may include copyrighted images or material from a third party you may need to obtain the permission of the copyright holder if you wish to copy or otherwise use copyrighted material Congressional Research Service RL32717 · VERSION 13 · UPDATED 10