Contingent Election Timeline - States, Electoral College, House; Where are we now?
Justin Haggerty | The Daily Knight
November 4-December 14, 2020: Counting Popular Votes and Filing Certificates of Ascertainment
Following election day, the states are to count and certify popular vote results according to their respective statutory and procedural requirements. When the states have completed their vote counts and ascertained the official results, the U.S. Code (3 U.S.C. §6) requires the state governors to prepare, “as soon as practicable,” documents known as Certificates of Ascertainment of the vote. The certificates must list the names of the electors chosen by the voters and the number of votes received in the popular election results, also the names of all losing candidates for elector, and the number of votes they received. Certificates of Ascertainment, which are often signed by state governors, must carry the seal of the state. One copy is forwarded to the Archivist of the United States (the Archivist), while six duplicates of the Certificate of Ascertainment must be provided to the electors by December 14, the date on which they meet.
December 8, 2020: The “Safe Harbor” Deadline
The U.S. Code (3 U.S.C. §5) provides that if election results are contested in any state, and if the state, prior to election day, has enacted procedures to settle controversies or contests over electors and electoral votes, and if these procedures have been applied, and the results have been determined six days before the electors’ meetings, then these results are considered to be conclusive, and will apply in the counting of the electoral votes. This date, known as the “Safe Harbor” deadline, falls on December 8 in 2020. The governor of any state where there was a contest, and in which the contest was decided according to established state procedures, is required (3 U.S.C. §6) to send a certificate describing the form and manner by which the determination was made to the Archivist as soon as practicable.
December 14, 2020: Electors Vote in Their States
Monday after the second Wednesday in December of presidential election years is set (3 U.S.C. §7) as the date on which the electors meet and vote. In 2020, the meeting is on December 14. Electoral college delegations meet separately in their respective states and the District of Columbia at places designated by their state legislature. The electors vote by paper ballot, casting one ballot for President and one for Vice President. The electors count the results and then sign six certificates, each of which contains two lists, one of which includes the electoral votes for the President, the other, electoral votes for the Vice President, each of which includes the names of persons receiving votes and the number of votes cast for them. These are known as Certificates of the Vote, which the electors are required to sign. They then pair the six Certificates of Ascertainment provided by the state governors with the Certificates of the Vote, and sign, seal, and certify them (3 U.S.C. §§8-10). The six certificates are then distributed by registered mail as follows: (1) one certificate to the President of the U.S. Senate (the Vice President); (2) two certificates to the secretary of state (or equivalent officer) of the state in which the electors met; (3) two certificates to the Archivist; and (4) one certificate to the judge of the U.S. district court of the district in which the electors met (3 U.S.C. §11).
December 23, 2020: Certificates Must Be Delivered to the Designated Officials
Certificates of electoral vote results must be delivered to above mentioned officers by the fourth Wednesday in December, in 2020, by December 23 (3 U.S.C. §12).
Failure to Deliver Certificates by December 23
If the certificates from any state have not been delivered by December 23, 2020, the President of the Senate, or in their absence the Archivist, is required to request the secretary of state or equivalent officer in that state to send one of the copies they hold to the President of the Senate by registered mail (3 U.S.C. §12, 13). The Code also directs them to send a messenger to the judge of the U.S. district court in the state directing the judge to transmit the certificate they hold by “hand ... to the seat of government.”
January 6, 2021: Joint Session of Congress to Count Electoral Votes and Declare Election Results Meets
On January 6, or another date set by law, the Senate and House of Representatives assemble at 1:00 p.m. in a joint session at the Capitol, in the House chamber, to count the electoral votes and declare the results (3 U.S.C. §15). The Vice President presides as President of the Senate. The Vice President opens the certificates and presents them to four tellers, two from each chamber. The tellers read and make a list of the returns. When the votes have been ascertained and counted, the tellers transmit them to the Vice President. If one of the tickets has received a majority of 270 or more electoral votes, the Vice President announces the results, which “shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President.”
Joint Session Challenges to Electoral Vote Returns
While the tellers announce the results, Members may object to the returns from any individual state as they are announced. Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question in their respective chambers for a maximum of two hours. The two houses then vote separately to accept or reject the objection. They then reassemble in joint session, and announce the results of their respective votes. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded. For additional information, see CRS Report RL32717, Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress, coordinated by Elizabeth Rybicki and L. Paige Whitaker.
January 20, 2021: Presidential Inauguration
On this date, the President and Vice President are to be inaugurated. The Twentieth Amendment set the date for inaugurations as January 20, beginning in 1937. Since 1981, the ceremony has, with one exception, been held on the West Front of the Capitol. The Vice President takes the oath first, followed at noon by the President.
Legislative Proposals to Extend the Post-Election Electoral College Timeline
Concern has been expressed by some that contested or delayed state popular vote results in the 2020 presidential election might prolong counting and ascertainment of results and encroach on the electoral college timeline. Two bills introduced in the 116th Congress would extend the time available for this process. S. 4517, introduced by Senator Marco Rubio, would be effective for the 2020-2021 election. It would change the Safe Harbor date to January 1, 2021, and the date on which electors vote to January 2. H.R. 8492, introduced by Representative David E. Price, would change the Safe Harbor date and also reschedule the electoral college meetings to the first day after January 1. It would also expedite delivery of certificates of the electoral vote and reschedule the joint session of Congress to count electoral votes to the second day after a revised deadline for election certificate delivery to the Vice President or the Archivist.
The above text was prepared by the Congressional Research Service (CRS).
Congress declares Contingent Election of the President and Vice President by Congress
The 12th Amendment to the Constitution requires that presidential and vice presidential candidates gain “a majority of the whole number of Electors appointed” in order to win election. With a total of 538 electors representing the 50 states and the District of Columbia, 270 electoral votes is the “magic number,” the arithmetic majority necessary to win the presidency.
What would happen if no candidate won a majority of electoral votes? In these circumstances, the 12th Amendment also provides that the House of Representatives would elect the President, and the Senate would elect the Vice President, in a procedure known as “contingent election.” Contingent election has been implemented twice in the nation’s history under the 12th Amendment: first, to elect the President in 1825, and second, the Vice President in 1837.
In a contingent election, the House would choose among the three candidates who received the most electoral votes. Each state, regardless of population, casts a single vote for President in a contingent election. Representatives of states with two or more Representatives would therefore need to conduct an internal poll within their state delegation to decide which candidate would receive the state’s single vote. A majority of state votes, 26 or more, is required to elect, and the House must vote “immediately” and “by ballot.” Additional precedents exist from 1825, but they would not be binding on the House in a contemporary election. In a contingent election, the Senate elects the Vice President, choosing one of the two candidates who received the most electoral votes. Each Senator casts a single vote, and the votes of a majority of the whole Senate, 51 or more, are necessary to elect. The District of Columbia, which is not a state, would not participate in a contingent election, despite the fact that it casts three electoral votes.
Although contingent election has been implemented only once each for President and Vice President since the 12th Amendment was ratified, the failure to win an electoral college majority is a potential outcome in any presidential election. Some examples include an election closely contested by two major candidates, one in which one or more third-party or independent candidacies might win a portion of the electoral vote, or one involving defections by a significant number of so-called “faithless” electors.
A contingent election would be conducted by a newly elected Congress, immediately following the joint congressional session that counts and certifies electoral votes. This session is set by law for January 6 of the year following the presidential election, but is occasionally rescheduled. If the House is unable to elect a President by the January 20 inauguration day, the 20th Amendment provides that the Vice President-elect would act as President until the impasse is resolved. If neither a President nor Vice President has been chosen by inauguration day, the Presidential Succession Act applies, under which the Speaker of the House of Representatives, the President pro tempore of the Senate, or a Cabinet officer, in that order, would act as President until a President or Vice President qualifies.
The above text was prepared by the Congressional Research Service (CRS), Contingent Election of the President and Vice President by Congress: Perspectives and Contemporary Analysis.
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