How to Resolve a Contested Election, Part 2: How Congress Counts the Electoral Votes

This post is part two of a three-part series on the legal process for selecting a president and the possibility of a contested 2020 election. Anderson will be discussing these articles and answering questions from Lawfare patrons at a Lawfare Liveonline eventthis Friday, Oct. 23, at 12:00pm EDT. For more information on how to join, click here.

The last postin this series focused on the states, their appointed electors and the votes that those electors cast for president and vice president. This post picks up where that process left off: with the electors appointed by each state having cast their votes and sent them to the president of the Senate, a position filled by the incumbent Vice President. At this point, it falls to Congress to count the electoral votes and discern the winner. But even that is easier said than done.

The Constitution is vague on how precisely electoral votes should be counted. The 12th Amendment states simply that “[t]he President of the Senate[,]” meaning the Vice President, “shall, in the presence of the Senate and House of Representatives, open all the certificates” received from states’ electors “and the votes shall then be counted[.]” The passive voice of this final directive leaves open the question as to who, precisely, does the counting on behalf of the federal government—and, perhaps more importantly, who gets to decide which votes get counted and which do not. Various answers to this question have found cachet over the years. For most of American history, however, Congress has taken this responsibility unto itself, consistent with its authority to enact measures necessary and proper for the federal government to exercise its constitutional powers. To do so, it’s developed a process rooted in overlapping statutes, congressional rules and historical practices that has somehow managed to remain relatively consistent over most of the 20th century.

Before turning to this process, however, some thought must be given to Congress itself. After all, the president and vice president aren’t the only offices on the 2020 ballot. Every member of the House and more than a third of the Senate are also up for election. Any major election disputes that impact the presidency—over such issues as mail-in ballots and counting delays—are likely to also impact these congressional elections. And the ramifications aren’t limited to Capitol Hill: instead, the manner in which these disputes are resolved at the congressional level may impact whether and how members of Congress are able to perform their duties of finalizing the selection of a new president.

Composing the New Congress

Since the 1933 adoption of the 20th Amendment, it’s been the newly elected Congress, not the incumbent Congress, that has overseen the counting of electoral votes and resolved lingering presidential election disputes. At the time, this was seen as a move towards greater representative democracy, as it ensured that the officials deciding who fills the presidency are freshly elected and not holdovers from a political regime that voters had elected to remove from office. Yet it also tied the fates of the presidency and Congress to the same political moment, making them simultaneously vulnerable to major disruptions if and when they arise.

The Constitution makes state legislatures responsible for choosing the “Times, Places and Manner of holding Elections” for members of Congress, but allows Congress to “at any time by Law make or alter such Regulations[.]” In practice, this allows Congress to set ground rules for how congressional elections are conducted—dictating the means of voting, for example, and establishing congressional districtsin House races—while leaving various details up to the states. Currently, federal law requires that elections for both Houseand Senateseats take place on the same day as presidential elections in the years before each incumbent’s term concludes, resulting in a single biannual Congressional Election Day.

On similar logic, Article I of the Constitution makes each chamber of Congress “the Judge of the Elections, Returns and Qualifications of its own Members[,]” effectively giving the House and Senate control over how congressional elections are finalized and disputes resolved. As discussed in another recent Lawfare piece, states have responded to this allocation of responsibility in a diverse set of ways. Some set out rigorous dispute resolution procedures before state courts or administrative bodies. Others explicitly defer to Congress’s own decision-making and limit their own procedures to the possibility of recounts. The outcome of such procedures is not necessarily binding on the House and Senate, but it often creates a strong presumption in favor of the result of the state dispute resolution procedures. Moreover, by determining which candidates state officials certify as the winners of their elections, state-level proceedings can determine who fills the position while a dispute is being resolved. As a result, both members-elect and their challengers often have an incentive to pursue these proceedings prior to or alongside challenges before Congress.

When a congressional election is completed, state officials are required to certify the results. For each Senate election, the governorand secretary of stateare required to jointly certify the winners of Senate seats to the president of the Senate. Credentials for members-elect of the House, meanwhile, are provided by state officials in the manner prescribed by state lawto the incumbent Clerk of the House, who continues to perform certain duties into the new Congress and maintains the official roll of representatives-elect. In both House and Senate elections, the president of the Senate and the clerk exercise some minor authorityin reviewing and enforcing the adequacy of credentials and qualifications of members-elect as they are presented, but only by ensuring that they meet the basic legal requirements.

Challenges to election results in both the House and Senate can, in many cases, be initiated before the new Congress convenes. Particularly in the Senate, relevant committees may even begin investigations or make recommendations on a possible resolution prior to the first session of the new Congressand lay out a planned path forward at the first session. Final resolution, however, cannot come until the new Congress sits, establishes its officers and committees, and can make its own judgments about which candidates should fill the empty seats in both chambers. Once it does, its discretion is absolute and its decision is final, as even the Supreme Court has indicatedthat it cannot engage in review of the chamber’s judgment.

The 20th Amendment requires each new Congress convene on January 3rd at 1:00 p.m., unless Congress enacts a different date and time by statute (as the outgoing Congress often does just before adjourning). On that first day, both the Houseand Senatepursue a well-established series of steps that includes swearing in newly elected Senators and Representatives, appointing officers and establishing committees. This in turn kicks off the process for determining who, in fact, is entitled to each seat.

In the House, there are two ways that challenges may be initiated. The preferred procedure is through the Federal Contested Elections Actof 1969, which, in its current form, allows any losing candidate to contest the results by filing a complaintwith the clerk of the House and servinga copy of the complaint to the winner of the election within 30 days of the results being declared by state officials. While less common, members and members-elect of the House may also raise election challenges themselvesby objecting when the new members-elect are administered the oath of office on the first day of the new Congress. In either case, the credentials accepted by the clerk of the House are generally taken as prima facie evidencethat the member-elect is entitled to the seat, meaning he or she is generally (but not always) allowed to take the seat pending the resolution of the dispute.

Challenges are then generally referred to the committee of jurisdiction, which is currently the Committee on House Administration. This committee and its staff conduct an investigation of the allegations. This can include interviewing witnesses, holding hearings and even conducting recounts. For claims under the Federal Contested Elections Act, challenges are aided by the parties themselves, who are empowered by law to assemble a record by deposing witnessesand, where needed, issuing subpoenasthat carry with them possible fines and imprisonmentfor noncompliance. Once the investigation is complete, the committee prepares a report and recommendation, which it forwards to the House. Any House member may then bring a privileged resolution to resolve the dispute to the floor for a vote. A simple majority of the House may then decide to allow the original member-elect holding the seat to remain seated, to seat the challenger or to declare the results of the election void. In the latter event, the Constitution calls for a new election to fill the seat, although the exact details are left up to relevant state laws.

Meanwhile, in the Senate, the process for resolving election disputesis primarily a question of rule and precedent, not statute. Anyone may challenge a senator-elect’s claim to a Senate seat by submitting a relevant petition to the Senate, which generally refers the matter to the Senate Committee on Rules and Administration for investigation. As in the House, the receipt of valid credentials from state authorities by the president of the Senate is generally (but not always) taken as prima facieevidence that a senator-elect is qualified to hold office. This means that they are allowed to fill the seat while the election is ongoing. That said, on the first day of the new Senate—or whenever the contested Senator-elect first joins the chamber—he or she will generally be sworn in “without prejudice” to the final determination of who is entitled to that seat. This allows for the Senate to remove them by a simple majority vote in the Senate upon the resolution of the dispute. Alternatively, if no candidate has been certified by state authorities—as occurred in the 2008 disputed Minnesota Senate electionbetween Al Franken and Norm Coleman—then the seat may remain open until the dispute is resolved.

The Committee on Rules and Administration generally investigates contested Senate elections. As in the House, this effort can range from merely a debate and vote on an appropriate remedy to the solicitation of testimony from witnesses or to the actual conduct of a recount in the event of a disputed election. The committee’s probe can last an extended period. In many cases, the committee has also awaited the resolution of ongoing state proceedings to resolve a given contest, even though those proceedings are not necessarily binding on the committee’s determination. Regardless, once a majority of the committee comes to agreement on a way forward, it generally provides a report and recommendation to the whole Senate, who takes it up for a vote. A majority in the Senate may then elect to seat one of the two claimants or nullify the results of the election. The latter case results in a vacancy, which the Constitution allows states to fill either through special elections or vacancy appointments, as defined by state laws.

The impact of congressional election disputes on the presidential selection process is impossible to predict. In a worst case scenario, widespread election controversies could lead to a myriad of challenges to a wide swathe of the House and a substantial portion of the Senate. Importantly, those claimants with the imprimatur of their governors and secretaries of state are likely to be the ones to fill the contested seats during the earliest stages of the new Congress—including when the new Congress is counting electoral votes and deciding on the new president. In most cases, this is unlikely to change the dynamics of any presidential selection debates. But one can imagine nightmare scenarios where one chamber of Congress or the other is closely split and the holder of a contested Congressional seat plays a decisive role in the outcome.

Counting the Electoral Votes

Federal law currently requiresthat the newly elected House and Senate convene in a joint session to count the electoral votes for president on January 6th at 1:00 p.m., although Congress can set a different time and datethrough law. The two chambers generally enter into this joint session through the passage of a concurrent resolution by both chambers. Importantly, inrecentyears, this concurrent resolution has often incorporated federal laws relating to the counting of electoral votes by reference. Each has also paraphrased key language on how the joint session should operate from the 1887 Electoral Count Act, the federal law that regulates the process for counting electoral votes.

The language in these concurrent resolutions is important because it may help address a major criticism of the Electoral Count Act: that one Congress cannot constitutionally restrict how future Congresses chooses to handle the electoral vote counting process. According to this view, the conduct of the joint session of Congress at which the count takes place is the product of the procedural rules adopted by Congress, and Article I of the Constitution empowers each chamber to “determine the rules of its proceedings[.]” Allowing a past Congress to dictate the rules for future congresses would run contrary to this authority. For this reason, many view the Electoral Count Act as effectively non-binding. Yet by incorporating these rules into the concurrent resolution initiating the joint session, each Congress effectively re-affirms the Electoral Count Act’s rules as their own and ensures their continued relevance. Of course, if those who view the Electoral Count Act as non-binding are correct, then each new Congress could choose to adopt rules that depart from its requirements. To do so, however, Congress would need to reflect the change in the concurrent resolution or some other instrument. Moreover, for purposes of at least the joint session, this would require majority support in both chambers.

The rules put in place by the Electoral Count Act severely constrain the structureand proceduresof the joint session so as to keep it narrowly focused on finalizing the results of the presidential election. According to these rules, no debate is permitted in the joint session and no question may be put to the body except “on a motion to withdraw[,]” meaning that the two chambers separate, debate for a fixed period of two hourspursuant to their own rules, and then vote on the issue before returning to vote session. In addition, no recess may be taken until the results are finalized, except in cases where there is a dispute as to the results. Even then, recess may only be taken until the start of the next calendar day (not including Sundays) and no such recesses may be taken once five or more days have passed from the beginning of the joint session.

As the incumbent vice president is the only one the Constitution specifically references in relation to counting electoral votes—specifically, by making him or her responsible for “open[ing] all the certifications” received from the state electors—he or she presides over the joint session in his or her capacity as president of the Senate. In this role, he or she is statutorily empowered to “preserve order[,]” the same authority provided to officials presiding over House and Senate sessions. Throughout U.S. history, some have arguedthat this constitutional role and related statutory authority provide the vice president with some substantive authority over the counting process, including by determining which electoral votes should be counted in cases of dispute. This is a particular point of anxiety in regard to the 2020 election, due to fearsthat Vice President Mike Pence might use such authority to influence the outcome of the vote count in President Trump’s favor.

As discussed below, however, the procedures set out in the Electoral Count Act—and paraphrased in the concurrent resolution initiating each joint session in recent years—are intended to severely constrainthe sorts of actions the vice president can take. One particularly limiting factor is that any substantive debate must take place “on a motion to withdraw[,]” meaning the actual debating and voting takes place in the House and Senate under their own leadership. As a result, the proceedings in the joint session—and the vice president’s role in them—have tended to be fairly mechanical. This doesn’t necessarily prohibit Pence from claiming some greater degree of constitutional authority. But doing so would go against the grain of both the Electoral Count Act and historical practice.

That said, there is another countervailing factor weighing against a seizure of authority by the vice president: the need for both the House and Senate to cooperate in order to satisfy the procedural requirements of the 12th Amendment. If the vice president were of a different party than either chamber, then the majority in that chamber might well walk out of the joint session, Electoral Count Act restrictions on recesses be damned. This might very well reduce the number of attendees below the constitutionally required threshold for quorum, making it impossible for the vice president to count the electoral votes “in the presence of the Senate and House of Representatives” as the 12th Amendment demands. While the vice president may declaim such action as unlawful and seek to continue in joint session absent that chamber, any such effort would be constitutionally questionable and thus risks both a lack of popular legitimacy and potential adverse rulings form the federal courts, if they are willing to become involved.

The one role the vice president does play during the joint session is to rule on the propriety of motions put forward during the joint session. Vice President Al Gore memorably used this authorityin January 2001 to limit efforts by members of his own party to make statements during the proceedings. On the advice of congressional parliamentarians, Gore also required that any motions not in writing and jointly made by a member of the House and a member of the Senate were out of order, further limiting opportunities to derail the proceedings. This suggests, however, that certain motions—including, for example, appeals of the vice president’s own procedural rulings—could be in order if presented in proper form. Notably, past vice presidents have also allowed for certain matters to be resolved on the basis of unanimous consent in the joint session without going into separate chamber proceedings.

The 12th Amendment prescribes that the vice president opens the certificates containing the electoral votes cast in each state in front of the joint session. As suggested by the constitutional requirement that this be done with “allthe certificates[,]” the vice president does not select one particular certificate when multiple certificates have been received from a given state, but instead reads them all. The Electoral Count Act—specifically, those provisionsparaphrased in the concurrent resolution initiating each joint session—requires that he or she then hand these certificates and any related papers to four tellers, two of whom are appointed in advance by each chamber. The tellers are then the ones who read the certifications out loud and maintain the actual count of the votes, limiting opportunities for the vice president to manipulate the count or misrepresent the information in the certificates. (On occasion, however, Congress has chosen on the basis of unanimous consentto dispense with the readings to expedite the process.)

Each time a certification is read out loud by the tellers, the vice president must call for objections. Where one is made, it must be submitted jointly in writing by a member of the House and a member of the Senate alongside an explanation of the relevant grounds, or else the objection may be rejected. There is some ambiguity as to whether objections must be dealt with one at a time or collectively for each state, though the bulk of opinion favors the latter. Regardless, when the time for consideration comes, the two chambers automatically separate into separate sessions to debate the merits. Each chamber conducts the session in line with its own rules, but the Electoral Count Act limits the ensuing debate to two hours with representatives and senators only allowed to speak for up to five minutes each. After two hours pass, the presiding officer for each chamber is obligated to put the question to a vote without further debate and return the chambers to the joint session.

How the two chambers vote in their separate sessions determines the outcome of the objection, in line with a notoriously convoluted formula that was put in place by the Electoral Count Act and is now codified at 3 U.S.C. § 15. Notably, this is where it becomes relevant whether the state in question has made a “conclusive” determination regarding the proper slate of electors through state-level dispute resolution procedures that qualify for the Electoral Count Act’s “safe harbor” provision at 3 U.S.C. § 5, as discussed in the last postin this series. If so—and there is only one such certification—then there is a strong presumption that the electoral votes cast by those elections are the proper ones that should be counted, even if Congress also received votes from other slates of electors from that state. If the state has not made a “conclusive” determination, then the outcome is less predictable.

The full formula prescribed by the Electoral Count Act is difficult to read and open to some interpretation. But the most widely accepted reading is something like the following:

• If only one set of electoral votes has been received from a state, then they will be counted unless both chambers of Congress determine that they were not “regularly given” by “lawfully certified” electors;
• If two or more sets of electoral votes are received from a state but only one appears to have been cast by a slate of electors arrived at through state procedures that qualify for the safe harbor provision, then the electoral votes cast by that set of electors will be counted;
• If two or more sets of electoral votes are received from a state and they both appear to be from slates of electors arrived at through state procedures that qualify for the safe harbor provision, then the two chambers of Congress must jointly agree on which set comports with state law and thus should be counted;
• If two or more sets of electoral votes are received from a state but none appear to have been cast by a slate of electors arrived at through state procedures that qualify for the safe harbor provision, then the two chambers of Congress may jointly agree to either accept one set of electoral results or to reject all of them;
• Finally, while experts disagree on when exactly this last provision applies, in either the latter scenario (according to one reading) or the latter two scenarios (according to another), if the two chambers of Congress do not agree, then the set of electoral results certified by the state’s executive will be counted instead.

While clumsy, this formula does present some obstacles for those who may wish to manipulate states’ electoral votes. Consider a hypothetical case in which a state legislature tries to appoint a state’s electors instead of assigning them on the basis of election results—a scenario discussed at length in the last postin this series that some fear could arise in 2020. If the state’s governor were opposed to the legislature’s actions or believed them to be unlawful, he or she might well proceed with appointing a separate set of electors based on the election results. If doing so qualified for the safe harbor at 3 U.S.C. § 5, then the governor’s slate of electors would be the one whose votes would be given priority under the Electoral Count Act—not the one appointed by the state legislature. This is because the state legislature’s actions cannot qualify for the safe harbor as they all take place post-election. And even if this governor-backed alternate slate of electors failed to qualify for the safe harbor, in a situation where the two chambers of Congress cannot agree on a way forward, the governor-backed electors’ votes would still be favored by virtue of having the governor’s certification.

Electoral Count Act notwithstanding, the state legislature is likely to argue that the Constitution demands that its electors’ votes be given priority, given its express constitutional authority to determine how electors should be assigned. And to vindicate this view, it may pursue litigation seeking to compel Congress to act accordingly. But the odds of the Supreme Court intervening to direct another co-equal branch of the federal government on how to do its own constitutional duty seems low. A more successful tack for the state legislature and its supporters may be to instead pursue litigation in either state or federal court seeking to compel the state’s governor to accept the legitimacy of the state legislature’s actions and refuse to certify (or rescind his or her certification of) the other slate of electors. But these courts may also be inclined to defer to Congress’s own dispute resolution procedures instead of intervening.

Regardless of the outcome, only after the objections to a given state’s electoral votes are resolved can the joint session move on to the next state. Once the certificates for every state and the District of Columbia have been opened and read, the tellers present the vice president with a statement communicating the results of the election, which he or she then reads out loud and submits into the records of both chambers alongside a list of the votes cast.

For a candidate to be elected president or vice president, the 12th Amendment requires that he or she receive votes from “a majority of the whole number of Electors appointed[.]” Historical practicehas varied on whether this requires a majority of the whole number of electoral votes allocated among the states and District of Columbia—currently 538—or just those actually counted, which may be lower in the event that some states’ electoral votes are rejected or never received. The bulk of historical practice favors the former approach, but there have been occasional instances in which congressional officials seemed to apply the latter.

No election has ever hinged on the difference between the two interpretations, but if it did, it’s entirely possible that Congress could be split on the proper approach and arrive at odds about the winner. Nor is it clear who would decide this question: the presiding vice president, the tellers who count the electoral votes or the joint session as a whole. The cleanest solution would be for the House and Senate to agree on and adopt an interpretation of this constitutional provision as part of the rules of the session, but this assumes that they could come to agreement, which is far from guaranteed. In the event of a true impasse, the Supreme Court might be willing to resolve the matter, particularly as it only relates to the interpretation of the plain text of the Constitution that is not clearly committed to another branch’s authority. Both the case and its ultimate resolution would be complicated, however, and the outcome impossible to predict in advance.

That said, if a candidate for president—and his or her vice presidential running mate—secure the requisite majority of electoral votes, then the Electoral Count Act holds that the statement read by the vice president and submitted into the record of both chambers is considered “a sufficient declaration of the persons, if any, elected President and Vice President,” effectively concluding the presidential election process. The winners in question will assume office a few weeks later at noon on January 20th, the time and day that the 20th Amendment establishes as the end of one presidential term and the beginning of another.

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But what happens if no candidate secures the requisite majority and no such determination is made? Or if there continues to be deadlock at some point in these proceedings? Or if one of the institutional actors involved in this process refuses to participate? In that event, the process of selecting a president moves away from hinging on electoral votes and towards a new, even more complicated phase. That will be the focus of the third and final post in this series.