The Electoral Vote Counting Clause

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.

—Michael T. Morley

Introduction

The constitutional procedure for counting electoral votes in presidential elections is somewhat underspecified. The Electoral Vote Counting Clause establishes a two-step process. First, the President of the Senate (the Vice President) must open the certified lists of electoral votes from each state’s electors “in the Presence of the Senate and House of Representatives.” Second, the clause specifies that “the Votes shall then be counted.” The consensus interpretation of this provision based on constitutional structure, historical practice, and pragmatic considerations, is that the chambers of Congress rather than the Vice President are responsible for resolving disputes concerning a state’s electors or electoral votes. The Vice President’s role is essentially ministerial. Some scholars, however, have argued otherwise. The Twelfth Amendment, which modified important aspects of the electoral college, retains this language about counting the votes.

The Constitutional Convention and Ratification

During June and July of 1787, the Framers considered various proposals to elect the President through an electoral college. None of those proposals discussed how states’ electoral votes would be tallied.¹

In late August, the Committee on Postponed Parts suggested provisions to establish an electoral college. They stated, in relevant part, that “[t]he President of the Senate shall in that House open all the certificates, and the votes shall be then and there counted. . . .”² On September 6, the Convention voted without debate to require that the electoral votes be “counted in the presence of the Senate and House of Representatives.”³ In adopting that amendment, the Convention eliminated the requirement that counting occur in the Senate chamber.⁴ After the Committee on Style made a few nonsubstantive modifications to capitalization and punctuation, the clause was included in the Constitution.⁵

Neither the ratification debates nor the Federalist Papers specifically discussed either the process for counting electoral votes or the respective roles of the Vice President and Congress in that process. These sources do not appear to have contemplated the possibility of any conflicts or difficulties in counting electoral votes.

Early Commentary

None of the jurists who wrote about the electoral count process in the early nineteenth century suggested that the Constitution grants the Vice President any substantive authority or discretion over the matter. William Rawle explained that electoral votes are “transmitted to the senate . . . to be opened by its president in the presence of the senate and house of representatives.”⁶ St. George Tucker made a similar point.⁷ Neither suggested the Vice President played any role in resolving disputes.

Justice Joseph Story elaborated that the Constitution made “no provision” for resolving “any questions which may arise” concerning the validity of electors’ appointments, the “regularity and authenticity” of their electoral votes, or “the manner and circumstances in which they ought to be counted.”⁸ Rather, “[i]t seems to have been taken for granted, that no question could ever arise on the subject; and that nothing more was necessary than to open the certificates which were produced, in the presence of both houses, and to count the names and numbers, as returned.”9 Story suggested, however, that such “very delicate and interesting inquiries” should be “debated and decided by some deliberative body.”⁹ This approach would preclude the Vice President from unilaterally resolving disputes concerning electors or electoral votes.

Chancellor James Kent noted that “the constitution does not expressly declare by whom the votes are to be counted, and the result declared.”¹⁰ He therefore “presume[d]” that “the president of the senate counts the votes, and determines the result, and that the two houses are present only as spectators.”¹¹ Kent did not provide any explanation for his “presum[ption],” however. In any event, he construed the Electoral Vote Counting Clause as establishing a constitutional default rule,¹² applicable only “in the absence of all legislative provision on the subject.”¹³ Since 1865, Congress has adopted rules and statutes specifying how disputes relating to the electoral count would be resolved. Thus, even under Kent’s view, the Vice President today cannot assert any constitutional prerogative to accept or reject electoral votes.

The First Presidential Election

After the Constitution was signed, the Constitutional Convention passed an accompanying resolution declaring that, once the Constitution was ratified, states should elect Senators, Representatives, and presidential electors.¹⁴ The resolution specified that, after those electors transmitted their electoral votes “to the Secretary of the United States in Congress assembled,” the newly chosen Senators should “appoint a [temporary] President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President. . . .”¹⁵ At that point, neither the President nor the Vice President would have been elected. The resolution did not mention the chambers of Congress participating in the electoral count, nor did it address how any potential problems with the count or controversies concerning electors would be resolved.

Fortunately, no such conflicts arose. On April 6, 1789, after the Senate achieved a quorum, it elected John Langdon of New Hampshire as Senate President “for the sole purpose of opening and counting the votes for President of the United States.”¹⁶ The Senate went on to elect William Paterson of New Jersey as “a teller on the part of the Senate” to “sit at the Clerk’s desk to make a list of the votes as they shall be declared.”¹⁷ The House similarly appointed two members “to sit at the Clerk’s table with the member of the Senate, and make a list of the votes as the same shall be declared.”¹⁸

The Senate and House then met in joint session in the Senate chamber to count electoral votes. George Washington was “unanimously” elected President with sixty-nine votes, and John Adams was elected Vice President with thirty-four votes.¹⁹ Following the joint session, the Senate reconvened and elected Langdon as its President pro tempore.²⁰ Langdon announced that “the Senate and House of Representatives had met, and that he, in their presence, had opened and counted the votes of the electors for President and Vice President.”²¹ He went on to list the candidates’ tallies from each state.²² Similarly, when the House reconvened, its two tellers “delivered in at the Clerk’s table a list of the votes of all the electors . . . as the same were declared by the President of the Senate, in the presence of the Senate and of this House.”²³ There is no record of any objections being raised or other problems or disputes arising during the count.

Other Early Elections

In 1792, before the second presidential election, Congress passed a statute to establish certain procedures for the electoral college. The Presidential Election and Succession Act of 1792 required each state to submit two certificates to the President of the Senate: one from the state’s executive identifying its presidential electors, and the other from the electors containing their electoral votes.²⁴ Congress would convene “on the second Wednesday in February . . . and the said certificates . . . shall then be opened, the votes counted, and the persons who shall fill the offices of President and Vice President ascertained and declared, agreeably to the Constitution.”²⁵

Shortly before convening to count electoral votes from the election of 1792, Congress adopted a concurrent resolution stating that each chamber would appoint tellers to “make a list of the votes as they shall be declared.”²⁶ At the count’s conclusion, the tellers would deliver those lists to the President of the Senate to announce the results.²⁷ Congress has since adopted a concurrent resolution setting forth the procedures for the electoral count before each such joint session.

When Congress met to count the electoral votes from the 1792 election, Vice President John Adams presided over the joint session in his capacity as President of the Senate. Adams “opened, read, and delivered to the tellers” the electoral votes.²⁸ The tellers, in turn, “examined and ascertained the votes” and prepared a list of each candidate’s vote tally.²⁹ At the end of the session, Adams read the tellers’ list to the chamber, declaring that he and President Washington had been re-elected.³⁰

Following the presidential election of 1796, Vice President Adams again presided over the joint session of Congress to count electoral votes. Adams and former Secretary of State Thomas Jefferson were the leading candidates for President. Allegations had arisen earlier that Vermont’s electors had not been appointed properly,³¹ but no one objected to Vermont’s electoral votes or otherwise raised the issue during the joint session.³²

Adams opened the packet from each state and read the certificate of election for its electors.³³ The Senate Clerk then read the electors’ votes and gave the state’s documents to the tellers.³⁴ At the conclusion of the count, the tellers “reported the result” to Adams.³⁵ Adams then announced the number of electoral votes each candidate had received: “By the report which has been made to me by the tellers . . . there are 71 votes for John Adams, 68 for Thomas Jefferson . . . . [T]he person who has 71 votes, which is the highest number, is elected President, and the person who has 68 votes, which is the next highest number, is elected Vice President.”³⁶ This tally included Vermont’s four electoral votes for Adams and four electoral votes for Thomas Pinckney.³⁷

The Annals of Congress note that at this point, Adams “sat down for a moment.”³⁸ He then rose again and declared that he had won the presidency and Jefferson was Vice President.³⁹ Some scholars have suggested that Adams’s decision to sit down was intended to give political opponents an opportunity to object to Vermont’s votes.⁴⁰ They contend that this action suggests Adams “harbored some doubts about his authority as President of the Senate to resolve disputed issues unilaterally.”⁴¹

The Election of 1800

In advance of the 1800 election, Congress considered a bill to resolve any disputes that might arise. As passed by the Senate, the bill would have established a Grand Committee composed of Senators and Representatives with the “power to examine, and finally to decide all disputes relative to” the presidential election.⁴² The House version of the bill would have allowed the committee to gather evidence but gave it “no decisive[] powers.”⁴³ The chambers were unable to resolve their differences and the measure died.⁴⁴ Importantly, however, neither chamber even considered the possibility of allowing the Vice President to resolve disputes over electoral votes, and none of the bill’s opponents suggested that the Constitution granted the Vice President such power.

Following the presidential election, Vice President Jefferson presided over the joint session of Congress to count electoral votes. After Jefferson opened the certificate from each state, its electoral votes were read aloud and the tellers added them to a running tally.46 Georgia’s electoral votes, which were dispositive to the election’s outcome, were not formatted according to constitutional requirements.⁴⁵ Although the official journals do not mention the problem, a contemporaneous newspaper reported that “the Tellers declared there was some informality in the votes of Georgia, but believing them to be the true votes, reported them as such.”⁴⁶ Accordingly, Georgia’s votes were counted for Jefferson and Aaron Burr.⁴⁷ Professors Bruce Ackerman and David Fontana speculate that Jefferson had likely “asserted his authority” as President of the Senate to “decisively resolve[] the issue by counting” the votes.⁴⁸ This conclusion reflects a substantial leap, however, because the tellers accepted the votes as valid, and there is no record of any member objecting to the votes once the defect was announced.⁴⁹ Thus, it is far from clear that Jefferson exercised—or even purported to exercise—any decision-making authority.

Largely in response to the election of 1800, the Twelfth Amendment was adopted, modifying several key aspects of the electoral college. Congress implemented those constitutional changes by making corresponding amendments to the 1792 Presidential Election and Succession Act.⁵⁰ The revised statute provided that electoral votes “shall be opened by the president of the Senate, for the purpose of being counted.”⁵¹ It did not otherwise reference the President of the Senate’s role.

Antebellum Vote Counts

The Election of 1804 was the first presidential election conducted under the Twelfth Amendment. President of the Senate Aaron Burr opened the electoral count by declaring to the tellers, “You will now proceed gentlemen . . . to count the votes as the Constitution and laws direct.”⁵² This announcement appears to disclaim any substantive power over vote counting. Objections were raised to electoral votes from Indiana in 1817 and Missouri in 1821 on the grounds that those territories had not become states in time for their votes to count.⁵³ Senate Presidents, however, played no role in resolving those unsuccessful objections.

The closest the President of the Senate came to exercising substantive authority was in 1857. Wisconsin’s electors had cast their electoral votes in the state capitol one day late because of inclement weather.⁵⁴ Shortly before Congress began to count the electoral votes, it adopted a concurrent resolution to govern the proceedings as it had done before each count since 1793.⁵⁵ The resolution, like previous ones, directed tellers appointed by each chamber to “make a list of the votes as they shall be declared” and “deliver[]” the “result” to the President of the Senate pro tempore, who would announce “the state of the vote” and the “persons elected.”⁵⁶

During the joint session, Virginia Representative John Letcher objected to counting Wisconsin’s votes.⁵⁷ Senate President pro tempore James Mason replied that the concurrent resolution governing the proceedings did not permit motions or debate during the vote count.⁵⁸ James Buchanan of Pennsylvania ultimately prevailed with 174 electoral votes, defeating John C. Fremont of California who had received only 114 votes, including Wisconsin’s five electoral votes.⁵⁹ Given the margin, Wisconsin’s votes did not affect the outcome.

At the count’s conclusion, Letcher nevertheless renewed his effort to have Wisconsin’s votes excluded.⁶⁰ Mason again responded that, under the concurrent resolution Congress had adopted, “nothing can be done here but to count the votes by tellers, and to declare the vote” results to the joint session.⁶¹ He added that “what further action may be taken . . . will devolve upon” the chambers of Congress.⁶²

After the joint session dissolved, both chambers debated the validity of Wisconsin’s votes. During the Senate debates, Mason clarified that he “utterly disclaims and never asserted” the power to rule on that issue.⁶³ Had the election’s outcome turned on those votes, he “would have considered it his duty to have reported” that fact to the joint session to allow Congress to decide how to “canvass[] the [electoral] votes.”⁶⁴ While numerous members in both chambers argued that Wisconsin’s votes were invalid,⁶⁵ both chambers rejected resolutions declaring that they should have been rejected.⁶⁶

Late Nineteenth-Century Electoral Counts and Congressional Enactments

During the late nineteenth century, Congress adopted several measures to regulate the electoral count, but none of them granted the President of the Senate authority to either determine the validity of electoral votes or resolve disputes concerning competing slates of electors. In 1864, toward the end of the Civil War, federal elections were held in several areas of the Confederacy that were controlled by the Union Army. The following February, Congress adopted Joint Resolution No. 12 which declared that the eleven Confederate states—individually named in the resolution—had “rebelled” and therefore were “not entitled to representation in the Electoral College” in the 1864 election.⁶⁷ The resolution specified that “no electoral votes shall be received or counted” from those states.⁶⁸

That year, Congress also adopted Joint Rule 22 to memorialize the procedure for counting electoral votes. The rule required the President of the Senate to open certificates of electoral votes and hand them to tellers appointed by the House and Senate to read aloud and tally.⁶⁹ If “any question shall arise in regard to counting the votes” from a particular state, the joint session would dissolve to allow each chamber to vote separately on the issue.⁷⁰ The rule specified that “no question shall be decided affirmatively, and no vote objected to shall be counted, except by the concurring vote of the two Houses.”⁷¹ Thus, under Joint Rule 22, a single chamber of Congress could reject a proposed slate of electors or electoral votes, but the Vice President lacked the authority to do so.

During the joint session following the 1864 presidential election, President of the Senate Hannibal Hamlin refrained from opening or giving the tellers certificates of electoral votes from the Confederate states of Louisiana and Tennessee, which were largely under Union control.⁷² At the count’s conclusion, Senator Edgar Cowan of Pennsylvania asked “whether there [were] any further returns to be counted.”⁷³ Hamlin replied that he had received returns from Louisiana and Tennessee, “but in obedience to the law of the land the Chair holds it to be his duty not to present them to the convention.”⁷⁴

Representative George H. Yeaman of Kentucky then moved that Hamlin open and present “all the returns before this joint convention . . . for its consideration.”⁷⁵ Hamlin responded that “if either branch of Congress shall be disposed to order the returns now upon the table to be read, it is within their power to do so.”⁷⁶ Once those returns were read, “then would arise another question, whether the vote in the return so read should be added to the count of the tellers.”⁷⁷ Upon learning that the joint session would have to dissolve to allow each chamber to vote on his motion, Yeaman withdrew it.⁷⁸ Thus, the count concluded without including electoral votes from Louisiana or Tennessee. Those votes, however, would not have affected the results: President Abraham Lincoln beat General George B. McClellan decisively by a vote of 212 to 21.⁷⁹ Even here, the Vice President did not exercise any independent discretion, but rather performed a ministerial duty in compliance with Joint Resolution No. 12, which explicitly prohibited the acceptance of electoral votes from Louisiana, Tennessee, and other Confederate states.

The Senate rescinded Joint Rule 22 in early 1876.⁸⁰ In the presidential election later that year between Democrat Samuel Tilden and Republican Rutherford B. Hayes, disputes arose over competing slates of electors submitted by Louisiana, South Carolina, Florida, and Oregon.⁸¹ As Chief Justice William H. Rehnquist has explained, “Hayes and some of his Republican supporters contended that the decision of the Senate president as to which set of returns to count should be final.”⁸²

Flatly rejecting that approach, Congress instead adopted the Electoral Commission Act of 1877.⁸³ The Act specified that if Congress received only a single certificate of electoral votes from a state, those votes had to be counted unless both chambers voted to reject them.⁸⁴ In contrast, when Congress received multiple certificates from competing sets of electors in a state, all of that state’s returns had to be submitted to a special commission composed of five representatives, five senators, and five Supreme Court justices.⁸⁵ The commission was to render its “judgment and decision as to which is the true and lawful electoral vote of such state.”⁸⁶ Its determination would be final unless both chambers of Congress voted concurrently to overturn it.⁸⁷ The commission resolved all of the disputes in Hayes’s favor and, consistent with those determinations, he prevailed by an electoral vote of 185 to 184.⁸⁸

A decade later, Congress passed the Electoral Count Act of 1887 to establish a more permanent framework for resolving disputes concerning electoral votes. The statute governed electoral counts for almost a century and a half.91 Neither the Electoral Commission Act nor the Electoral Count Act gave the Vice President substantive power to accept or reject either electors’ appointments or electoral votes.

Twentieth-Century Presidential Elections

Electoral counts throughout the early twentieth century generally occurred without incident. The two leading presidential candidates in the election of 1960 were Vice President Richard M. Nixon and Senator John F. Kennedy. In Hawaii, following the initial count of the popular vote, Nixon led by 141 votes.⁸⁹ Because the race was so close, a state court ordered a recount that remained ongoing by December 19, the date on which federal law required electors to cast their electoral votes. Accordingly, the governor of Hawaii certified the Republican electors as the victors.⁹⁰ They cast their three electoral votes for Nixon and submitted a certificate of their votes to the federal government.⁹¹

Due to the ongoing recount, however, the Democratic candidates for presidential elector also met that day and purported to cast their own electoral votes for Kennedy.⁹² They submitted their certificate without any endorsement from state authorities. Nearly two weeks later, after the recount’s completion, a state court determined that Kennedy had prevailed in Hawaii by 115 votes.⁹³ Hawaii’s newly elected governor submitted a third certificate to Congress declaring the Democratic electors to be the winners.⁹⁴

On January 6, 1961, Congress convened in joint session with Vice President Nixon presiding to count electoral votes.⁹⁵ Upon reaching Hawaii’s votes, Nixon announced that he had received “three certificates from persons claiming to be the duly appointed electors from the State of Hawaii.”⁹⁶ He handed each certificate to the tellers to read aloud.⁹⁷ After the certificates were read into the record, Nixon announced that he had “knowledge” and was “convinced that he [was] supported by the facts” that the third certificate, confirming that the Democratic electors had won, “properly and legally portrays the facts with respect to the electors chosen by the people of Hawaii at the election.”⁹⁸ He noted that those electors had cast their three electoral votes for Kennedy.⁹⁹

Nixon continued: “In order not to delay the further count of the electoral vote here, the Chair, without the intent of establishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful electors from the State of Hawaii.”¹⁰⁰ He added that “[i]f there be no objection,” he would instruct the tellers to count those electors’ votes for Kennedy.¹⁰¹ No such objections were raised, and the votes were counted.¹⁰²

Thus, rather than asserting authority to resolve any dispute over Hawaii’s electoral votes, Nixon instead “suggest[ed]” a solution to the joint session and acted only “without objection.”¹⁰³ In any event, Republicans had little incentive to challenge Hawaii’s three electoral votes because they were not dispositive: Kennedy defeated Nixon in the Electoral College by a margin of 303 to 219 (with fifteen electoral votes cast for Senator Harry F. Byrd of Virginia).¹⁰⁴

During the joint session following the hotly contested 2000 election that culminated in Bush v. Gore,¹⁰⁵ Vice President Al Gore declared several objections out of order and refused to recognize points of order because they did not comply with the Electoral Count Act’s procedural requirements.¹⁰⁶ After the 2004 election, in contrast, when a procedurally valid objection to Ohio’s electoral votes was lodged during the joint session, Vice President Dick Cheney directed the chambers to “withdraw” to “deliberate separately” and “report [their] decision[s] back to the joint session.”¹⁰⁷ Both chambers rejected the objection.¹⁰⁸

The Election of 2020

Following the 2020 election, Vice President Michael Pence rejected efforts to persuade him to either determine the validity of electoral votes or otherwise delay the proceedings.¹⁰⁹ In a letter to Congress, Pence wrote that his role would be “largely ceremonial.”¹¹⁰ “I do not believe that the Founders of our country intended to invest the Vice President with unilateral authority to decide which electoral votes should be counted during the Joint Session of Congress,” he explained, “and no Vice President in American history has ever asserted such authority.”¹¹¹ He opened the joint session by announcing that:

After ascertaining that the certificates [of electoral votes] are regular in form and authentic, the tellers will announce the votes cast by the electors for each State . . . which the Parliamentarians have advised me is the only certificate of vote from that State, and purports to be a return from the State, and that has annexed to it a certificate from an authority of that State purporting to appoint or ascertain electors.⁰

Thus, Vice President Pence declined to present to the joint session any “competing” slates of purported electors that had not been certified by state executives.

In the wake of January 6, Congress passed the Electoral Count Reform Act (ECRA) of 2022.¹¹² This law eliminated any potential ambiguity about the President of the Senate’s role. It expressly specifies that “the role of the President of the Senate while presiding over the joint session shall be limited to performing solely ministerial duties.”¹¹³ Moreover, “[t]he President of the Senate shall have no power to solely determine, accept, reject, or otherwise adjudicate or resolve disputes over the proper certificate of ascertainment of appointment of electors, the validity of electors, or the votes of electors.”¹¹⁴

Modern Academic Commentary

Some scholars have argued that both the Framers’ intent and early practice suggest that the Vice President may exercise at least some substantive power over the electoral count.¹¹⁵ As noted, however, early history provides limited support at best for such an interpretation. Moreover, despite such evidence, Vasan Kesavan concluded that the “better interpretation” is that the chambers of Congress have such power.¹¹⁶

Professors Jack Beerman and Gary Lawson argue that the Constitution’s delegation of power to the President of the Senate to open the certificates of states’ electoral votes implicitly empowers him to resolve disputes concerning those votes.¹¹⁷ One could just as easily contend, however, that the Constitution’s limited grant of authority to the Senate President to “open” states’ certificates implicitly precludes him from asserting any greater prerogatives. Professors Beerman and Lawson further suggest that the Senate President’s rulings are reviewable in federal court,¹¹⁸ but a lawsuit of that sort would face substantial obstacles such as the political question doctrine.¹¹⁹

Professors Robert J. Delahunty and John Yoo contend that the Senate President must have constitutional power to resolve disputes concerning competing slates of electors because, in their view, Congress lacks such authority.¹²⁰ While they correctly note that the Framers wanted the President to be independent of Congress, such concerns do not imply that the Framers authorized a single person—particularly the Vice President, who would often be a presidential candidate—to resolve electoral disputes instead.¹²¹

Open Questions

• The Electoral Count Reform Act of 2022 clarifies that the Vice President plays only a circumscribed “ministerial” role during the joint session at which Congress counts electoral votes.¹²² It is unclear, however, what remedies would be available if the Vice President were to exceed that role, decline to present a particular certified slate of electoral votes from a state to the joint session, or entertain objections that the ECRA does not authorize. Specifically, it is unclear whether the Vice President’s ruling or other action would be subject to appeal and, if so, whether a majority of each chamber would have to vote to uphold the appeal. It is similarly unclear whether mandamus or other judicial relief would be available in this context.
• The ECRA allows Congress to reject electoral votes if they are not “regularly given,”¹²³ but it does not define that term. The circumstances under which Congress may exercise this authority are unclear. For example, may Congress reject electoral votes cast in violation of a state “faithless elector” statute that specifies how electors must cast their votes? May Congress reject votes for a deceased candidate?

1. 1 Farrand’s 77, 80–81; 2 Farrand’s 22, 32, 50, 57–58, 97, 99, 105, 107–09. ↩︎
2. 2 Farrand’s 493–94, 497–98. ↩︎
3. Id. at 518, 520, 526. ↩︎
4. Id. at 521, 528. ↩︎
5. Id. at 598. ↩︎
6. William Rawle, A View of the Constitution of the United States of America 53 (2d ed. 1829). ↩︎
7. 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia, App. Note D at 326–27 (1803). ↩︎
8. 2 Story’s Commentaries § 1470. ↩︎
9. Id. ↩︎
10. 1 James Kent, Commentaries on American Law 258 (1826). ↩︎
11. Id. ↩︎
12. Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 Harv. L. Rev. 2085, 2098 (2002). ↩︎
13. Kent, supra at 258. ↩︎
14. 2 Farrand’s 665–66. ↩︎
15. Id. at 666. ↩︎
16. S. Jour., 1st Cong., 1st Sess. 7 (Apr. 6, 1789). ↩︎
17. Id. at 7–8. ↩︎
18. H.R. Jour., 1st Cong., 1st Sess. 7 (Apr. 6, 1789). ↩︎
19. S. Jour., 1st Cong., 1st Sess. 8 (Apr. 6, 1789); H.R. Jour., 1st Cong., 1st Sess. 8 (Apr. 6, 1789); Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution, Part III: The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 425–26 (2023). ↩︎
20. S. Jour., 1st Cong., 1st Sess. 8 (Apr. 6, 1789). ↩︎
21. Id. ↩︎
22. Id. ↩︎
23. H.R. Jour., 1st Cong., 1st Sess. 7 (Apr. 6, 1789). ↩︎
24. Presidential Election and Succession Act of 1792, Ch. 8, §§ 2–3, 1 Stat. 239, 239–40 (Mar. 1, 1792); 1 Annals of Cong., 1st Cong., 3rd Sess. 1915–18 (1791). ↩︎
25. Presidential Election and Succession Act of 1792, § 5, 1 Stat. at 240. ↩︎
26. S. Jour., 2d Cong., 1st Sess. 484 (Feb. 11, 1793); H.R. Jour., 2d Cong., 1st Sess. 699–700 (Feb. 11, 1793). ↩︎
27. S. Jour., 2d Cong., 1st Sess. 484 (Feb. 11, 1793); H.R. Jour., 2d Cong., 1st Sess. 699–700 (Feb. 11, 1793). ↩︎
28. S. Jour., 2d Cong., 2d Sess. 485 (Feb. 13, 1793); H.R. Jour., 2d Cong., 2d Sess. 701 (Feb. 13, 1793). ↩︎
29. S. Jour., 2d Cong., 2d Sess. 485 (Feb. 13, 1793). ↩︎
30. Id. at 485–86. ↩︎
31. Bruce Ackerman & David Fontana, Thomas Jefferson Counts Himself Into the Presidency, 90 Va. L. Rev. 551, 571–73 (2004). ↩︎
32. 6 Annals of Cong. 2095–98 (1797). ↩︎
33. Id. at 2096. ↩︎
34. Id. ↩︎
35. Id. at 2097. ↩︎
36. Id. at 2097–98. ↩︎
37. Id. at 2096–97. ↩︎
38. Id. at 2098. ↩︎
39. Id. ↩︎
40. Ackerman & Fontana, supra at 581 (citing Edward Stanwood, A History of the Presidency from 1788 to 1897, at 52 (rev. Charles Knowles Bolton, 1926)). ↩︎
41. Id. ↩︎
42. An Act Prescribing the Mode of Deciding Disputed Elections of President and Vice-President of the United States, S.9, 6th Cong., 1st Sess., § 1 (Mar. 31, 1800); 10 Annals of Cong. 146 (1800); id. at 176–77. ↩︎
43. 10 Annals of Cong. 691–92 (1800); id. at 697. ↩︎
44. Id. at 176–77, 179, 182, 713. ↩︎
45. Ackerman & Fontana, supra at 588. ↩︎
46. Id. at 601 (quoting Aurora & Gen. Advertiser (Phila.), Feb. 11, 1801, at 2). ↩︎
47. 10 Annals of Cong. 1024 (1801). ↩︎
48. Ackerman & Fontana, supra at 603, 631. ↩︎
49. 10 Annals of Cong. 1023–24 (1801); Ackerman & Fontana, supra at 601 n.25. ↩︎
50. Ch. 50, 2 Stat. 295–96 (1804). ↩︎
51. Id. § 2, 2 Stat. at 296. ↩︎
52. 8 Annals of Cong. 56 (1805). ↩︎
53. 14 Annals of Cong. 944, 949 (1817); 16 Annals of Cong. 346, 1154, 1163–64 (1821). ↩︎
54. Cong. Globe, 34th Cong., 3d Sess. 652 (1857); id. at 660 (statement of Rep. James C. Jones). ↩︎
55. Id. at 587 (Feb. 5, 1857). ↩︎
56. Id. ↩︎
57. Id. at 652 (statement of Rep. John Letcher). ↩︎
58. Id. (statement of Senate President Pro Tempore James Mason). ↩︎
59. Id. ↩︎
60. Id. (statement of Rep. John Letcher). ↩︎
61. Id. (statement of Senate President Pro Tempore James Mason). ↩︎
62. Id. ↩︎
63. Id. at 645, 649 (statement of Senate President Pro Tempore James Mason). ↩︎
64. Id. at 645. ↩︎
65. Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653, 1686 (2002). ↩︎
66. Cong. Globe, 34th Cong., 3d Sess. 650 (1857); id. at 674–75. ↩︎
67. Cong. Globe, 38th Cong., 2d Sess. App. 159 (1865); H.R. Jour., 38th Cong., 2d Sess. 191 (1865); S. Jour., 38th Cong., 2d Sess. 136 (Feb. 4, 1865); Cong. Globe, 38th Cong., 2d Sess. 595, 602 (1865). ↩︎
68. Cong. Globe, 38th Cong., 2d Sess. App. 159 (1865). ↩︎
69. Id. at 608, 628. ↩︎
70. Id. ↩︎
71. Id. ↩︎
72. Id. at 668. ↩︎
73. Id. ↩︎
74. Id. ↩︎
75. Id. ↩︎
76. Id. at 669. ↩︎
77. Id. ↩︎
78. Id. ↩︎
79. Id. ↩︎
80. William H. Rehnquist, Centennial Crisis: The Disputed Election of 1876, at 100 (2004). ↩︎
81. Edward B. Foley, Ballot Battles: The History of Disputed Elections in the United States 119, 123–24 (2016). ↩︎
82. Rehnquist, supra at 100. ↩︎
83. Ch. 37, § 1, 19 Stat. 227, 227 (Jan. 29, 1877). ↩︎
84. Id. at 227–28. ↩︎
85. Id. § 2, 19 Stat. at 228. ↩︎
86. Id. ↩︎
87. Id. at 229. ↩︎
88. Cong. Globe, 44th Cong., 2d Sess. 2068 (1877). ↩︎
89. Nathan L. Colvin & Edward B. Foley, The Twelfth Amendment: A Constitutional Ticking Time Bomb, 64 U. Miami L. Rev. 475, 519 (2010). ↩︎
90. Id. at 520. ↩︎
91. Id. ↩︎
92. Id. ↩︎
93. Id. (citing Lum v. Bush, Civ. No. 7029 (Haw. Cir. Ct. Dec. 30, 1960)). ↩︎
94. Id. ↩︎
95. 107 Cong. Rec. 288–89 (1961). ↩︎
96. Id. at 289. ↩︎
97. Id. ↩︎
98. Id. at 290. ↩︎
99. Id. ↩︎
100. Id. (emphasis added). ↩︎
101. Id. ↩︎
102. Id. ↩︎
103. Id. ↩︎
104. Id. at 291. ↩︎
105. 531 U.S. 98 (2000) (per curiam). ↩︎
106. 147 Cong. Rec. H32, H34–36 (2001); 163 Cong. Rec. H186–H189 (2017). ↩︎
107. 151 Cong. Rec. H86 (2005). ↩︎
108. Id. at H128. ↩︎
109. Annie Karni, Pence Rejects Trump’s Pressure to Block Certification Saying He “Loves the Constitution,” N.Y. Times (Jan. 6, 2021), https://perma.cc/3VWH-365J. ↩︎
110. Vice President Mike Pence’s Full Statement on the Electoral Count (Jan. 6, 2021), https://perma.cc/2NTS-SGQC. ↩︎
111. Id. ↩︎
112. Pub. L. No. 117-238, Div. P, § 1, 136 Stat. 4459, 5233 (Dec. 29, 2022). ↩︎
113. Id. § 109(a), 136 Stat. at 5238 (codified at 3 U.S.C. § 15(b)(1)). ↩︎
114. Id. (codified at 3 U.S.C. § 15(b)(2)). ↩︎
115. Kesavan, supra at 1706; Colvin & Foley, supra at 480 (citing C.C. Tansill, Congressional Control of the Electoral System, 34 Yale L.J. 511, 511 (1925), and David A. McKnight, The Electoral System of the United States 17 (1878)). ↩︎
116. Kesavan, supra at 1706. ↩︎
117. Jack Beerman & Gary Lawson, The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) About Counting Electoral Votes, 16 FIU L. Rev. 297, 304–05 (2022). ↩︎
118. Id. at 305. ↩︎
119. Michael T. Morley, The Enforcement Act of 1870, Federal Jurisdiction Over Election Contests, and the Political Question Doctrine, 72 Fla. L. Rev. 1153, 1206–08 (2020). ↩︎
120. Robert J. Delahunty & John Yoo, Who Counts? The Twelfth Amendment, the Vice President, and the Electoral Count, 73 Case W. Rsrv. L. Rev. 27, 61, 90 (2022); Beerman & Lawson, supra at 305–06. ↩︎
121. Derek T. Muller, The President of the Senate, the Original Public Meaning of the Twelfth Amendment, and the Electoral Count Reform Act, 73 Case W. Rsrv. L. Rev. 1023, 1025 (2023). ↩︎
122. 3 U.S.C. § 15(b). ↩︎
123. Id. § 15(d)(2)(B)(ii)(II). ↩︎