Cover credit – FMT
Making the results of the presidential election official is a quadrennial process that is rooted in the U.S. Constitution. The process culminates in Congress’ certification of the vote count, making it the last obligation before a new President is sworn in.
Background
Donald Trump (R-FL) was elected as the Forty-Seventh President in November, capturing 312 electoral votes from thirty-one states (and one congressional district in Maine) to Vice President Kamala Harris’ 226 from twenty-nine states (and one congressional district in Nebraska, as well as the District of Columbia).
Contrary to popular belief, the public does not directly elect their presidential candidates; rather, they vote for a slate of electors who pledge to vote for their party’s candidate should the public instruct them to. Each state’s political parties produce their own slates of electors, which consist of elected officials, party leaders, dignitaries, or close friends of the candidates. The party who wins a state will see their respective slate of electors vote to certify the results in their candidate’s favor.
For example, New York produced two slates of electors, one in the event of Harris win (which is what occurred) and one for a Trump win. Had Trump won New York, an entirely different slate of electors would have voted to certify his win.
The electors meet in their respective state capitals to produce two documents to be sent to Congress, a Certificate of Ascertainment and a Certificate of Vote. The former certificate is an official document that identifies the state’s appointed electors to the Electoral College, usually by writing the tally of popular votes each slate of electors received, denoting which one was the victorious slate. The Certificate of Ascertainment is signed by the governor and is then sent to the Archivist of the United States. The certificate must bear the state seal, but the states have the liberty to decide the physical layout and other details of the document.
The Certificate of Vote is the document signed by each of the electors. The document must also bear the state seal.
The Office of the Federal Register inspects the documents to ensure all necessary information is present. Each state is required to produce seven original certificates with two certified copies, for a total of nine originals. Both the House and the Senate receive one of the copies that are sent to the Archivist.
One pair of the documents is sent to the President of the Senate – the U.S. Vice President – two pairs are sent to the Archivist, two are sent to each state’s secretary of state, and one pair is sent to the chief judge of the closest U.S. District Court. One of each of the two pairs sent to the Archivist and the secretaries of state are used for public display and inspection. The other copies are “held subject to order of the President of the United States Senate.”
The Counting Procedure
The Electoral Count Act of 1887 sets the rules of procedure. Once the electoral results are finalized and certificates are produced and sent to the Archivist, the final step in the process is for the sitting vice president, that is, not the vice presidential nominee just elected, must receive and open each envelope of certificates, read them aloud to a joint session of Congress, and open the floor to objections in each state.
Under Section 4 (3 U.S.C. §15), Congress is required to be in session on January 6 following the election. Under the Twentieth Amendment, the joint session is conducted by the newly elected Congress, rather than the outgoing Congress, for the purpose of certifying the new president and vice president under the most representative Congress. A lame-duck Congress might be of different partisan composition, or majority parties might have changed during the concurrent presidential election. Not only does this change the power dynamic when it comes to possibly objecting to presidential results in each state, but a lame-duck House would also have the power to choose the president, the lame-duck Senate would chose the vice president, in the event that no candidate received 270 electoral votes, a majority of the 538 available.
This creates extra pressure for the House and Senate to elect leaders, primarily a House Speaker. This year, Republicans entered the new Congress with a razor-thin 220-seat majority. Speaker Mike Johnson (R, LA-04) won on the first round of voting, a stark departure from the 2023 reorganization, where Kevin McCarthy (R, CA-20) was elected on the fifteenth ballot. Without a House Speaker, the rules are suspended, no legislation moves the floor, and the Clerk of the House acts as presiding officer until a Speaker is selected.
Since the House chose a Speaker, Congress was able to convene in a joint session to certify the results. Had they not, a Speaker pro tempore could have been selected to continue the count, with the House returning to the Speaker election afterward. Even without a congressional certification, the Twelfth and Twentieth amendments stipulate that Biden’s and Harris’ terms would have expired at noon on January 20. Constitutional language is sufficient to supply Trump and Vance with a transition of power, even if Congress hadn’t determined the winner of the election.
However, some commentators argue that under the Twentieth Amendment and the Presidential Succession Act would mean that if no president and vice president are selected under the Electoral Count Act, the Speaker of the House would serve as acting president. Without a House Speaker, the line of succession falls on the President pro tempore of the Senate, a position elected by the entire body and one that is usually reserved for the most senior Senator of the majority party. It is a constitutionally mandated position, but without formal specifications on who can serve. The president pro tempore cannot cast tie-breaking votes in an evenly-divided Senate, as opposed to the vice president.
Under this theory, had Congress not certified the presidential results, and had the House not elected a Speaker, President pro tempore of the Senate Chuck Grassley (R-IA) would have served as acting president.
Two “tellers” – vote readers – must be “previously appointed” by the Senate, and two by the House. The vice president then opens all certificates of the electoral votes in alphabetical state order. The contents are then handed to the four tellers.
The vocal counting allows for members of Congress to object to a state’s results. Objections must be resolved before counting continues. For objections to be considered and voted on, it must be made in writing and made by at least one member of the House and one member of the Senate. Notable objections include those of Democrats to Ohio’s results in 2004 – the state had backed President Bush (R-TX) – as well as those in ten states won by Trump in 2016. Republicans attempted objections in six states flipped by Joe Biden (D-DE), while two – Arizona and Pennsylvania – were defeated.
The 2024 election results saw no objections on Monday, and Kamala Harris became the first sitting vice president to preside over his/her own loss since Al Gore (D-TN) read aloud the results in 2001.
With the House and Senate now sworn in and with elected leadership, and with the results certified and heard, Trump and Vance are now set to be sworn in on January 20.
What Happens During Objections?
Should at least one member of the House and at least one member of the Senate provide their objections to a state’s results in writing, the chambers meet separately to deliberate. Each objecting member may speak on the matter for five minutes individually. After two hours of debate, the presiding officer of each chamber must “put the main question without further debate,” with Section 7 stating that the joint session of Congress cannot be dissolved “until the count of electoral votes shall be completed and the result declared.”
The two chambers then reconvene to vote by a simple majority to concur with the objection. If both chambers affirm the objection, and if such an objection(s) results in neither candidate receiving at least 270 votes, the Twelfth Amendment dictates that the House select the president in voting bloc fashion. Members would cast one vote per state based on the partisan makeup of their delegation. This is a reason why winning a majority of House seats within a state can be a valuable insurance of a party, should their candidate be in the historically rare position of a contested election.
This was almost a reality in 2004, when thirty-two Democrats voted to throw out Ohio’s twenty electoral votes, which would have brought President Bush under 270 electoral votes, all other states’ votes intact. Senators, on the other hand, pick the vice president, one vote per Senator.
