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December 17:
Presidential Electors Vote

Because most electors remain free, there is a good deal of room for bargaining between November 6 and December 17—if, that is, no candidate's performance on November 6 produces a majority in the electoral college. For example, if a third-party candidate wins a plurality of the popular votes in one or more states in 1984, his electors could cast their ballots for one or the other of the major party candidates (or anyone else). In 1968, Hubert Humphrey could have decided to ask his electors to vote for Richard Nixon (if Nixon had lacked an electoral college majority) rather than see Nixon bargain with George Wallace. Thus, the electoral college could well produce a winner on December 17 that was not apparent on election day, November 6.

On December 17, the electors appointed or chosen on November 6 will meet in their respective states to cast two ballots, one for president and one for vice president. Although unknown to most of the public, their names will have been certified by the governors to an official of the federal government, the administrator of general services. A federal statute requires that this be done "as soon as practicable" after November 6. (See provision for "Credentials of electors ...," appendix B, p. 26.) Thus, shortly after November 6, an official of the national government will know the names of the 538 persons who will meet in their respective states and in the District of Columbia on December 17 and vote for president and vice president. He will also know the number of popular votes cast for the successful, as well as for the unsuccessful, candidates for electors.

The persons whose names appear in the certificates sent by the governors to Washington will be the electors eligible to vote for president and vice president on December 17. As discussed in chapter 2, any “controversy or contest" concerning the identity of these eligible electors will have been resolved by the states acting under state laws. The votes they cast, one for president and one for vice president, will be recorded in certificates, which will be sealed and sent to the president of the Senate in Washington. (See provisions for "Certificates of votes for President and Vice President," “Sealing and endorsing certificates," and “Disposition of certificates," appendix B, p. 27.) At least one of the two votes cast by each elector must, of course, be cast for a person who is "not an inhabitant of the same state with [him]self.” It is this constitutional provision that has led to the practice of political parties (and independent candidates) nominating a candidate for president from one state and a candidate for vice president from another state. The Constitution does not require the president and vice president to be inhabitants of different states; it merely requires electors to cast at least one ballot for someone from another state. Thus, if in 1980 the Republican party had nominated Gerald Ford to run with his fellow Californian, Ronald Reagan (assuming neither changed his official residence to another state), only California electors would have been presented with a problem, and more precisely, only California Republican electors. They would have had to vote for Reagan and, say, Jack Kemp, or, say, Jack Kemp and Gerald Ford; they would not have been permitted to vote for a ticket comprising both Reagan and Ford.

January 6: Congress Counts the Electoral Votes

Who Counts?

The certificates containing the votes cast by the 538 electors on December 17 will be opened by the president of the Senate on January 6, 1985, before a joint session of the new House and the new Senate, the members of which (under Amendment XX) will themselves have been sworn in on January 3. (See appendix A, pp. 23–24.) The certificates are identified and counted by tellers appointed by the House and the Senate, and announced by states in alphabetical order. According to Amendment XII of the Constitution (see appendix A, p. 22), the person having the greatest number of votes for president, if such number is a majority of the whole number of electors appointed, shall be president; and the person having the greatest number of votes for vice president, if such number is a majority of the whole number of electors appointed, shall be vice president. Assuming each state "appoints" the number of electors to which it is entitled, the total of electors will be 538 and the majority required for election will be 270.

Who Counts What?

The tellers read "certificates and papers purporting to be certificates of the electoral votes." The president of the Senate calls for objections, if any, to these certificates or papers as they are read.' The statute provides that objections must be made in writing, must state "clearly and concisely, and without argument, the ground thereof," and must be signed by at least one member of the House and one member of the Senate. When objections are filed, both houses retire to separate sessions to decide whether the questioned certificates are counted or rejected. Under the statute, both houses have to reject a challenged electoral ballot for the objection to prevail. The statute says that Congress shall not reject any "electoral vote or votes from any state which shall have been regularly given by electors whose appointment has been lawfully certified,” but it does not define “regularly given.” (See provision for “Counting electoral votes in Congress," appendix B, pp. 28–30.)

These procedures were used for the first time on January 6, 1969. Representative James O'Hara (Democrat, Michigan), Senator Edmund Muskie (Democrat, Maine), thirty-seven other representatives, and six other senators objected in writing to the vote cast by Dr. Lloyd Bailey, a North Carolina elector who had been on the Republican slate but who voted for Wallace/LeMay rather than for Nixon/Agnew. By roll call votes, both houses rejected the challenge and upheld the vote cast by Bailey.

It might be concluded from this example that a "regularly given vote”—which is a vote the Congress must count-means no more than a vote cast by an elector whose name had been certified by the governor of the state to the administrator of general services. Under this interpretation a list of certified electors from each state will on January 6 be in the hands of the Congress, whose only function would be to see that the votes were cast by the electors whose names appear on those lists. The term "regularly given” could, however, be interpreted more expansively by a future Congress, especially a Congress confronted with faithless electors whose votes, unlike Bailey's, would determine the outcome of an election. The term does, after all, appear in a statute written by Congress. But if Congress were to refuse to count a vote cast by a faithless elector-for example, a vote cast for Anderson by an elector pledged to vote for Reagan-it would be interpreting more than statutory language: it would be making a constitutional judgment.

If the November 6 election is disputed and Congress receives more than one list of electors, and if that dispute had not been resolved according to the laws of the state, then the two houses, acting concurrently, will decide who are the eligible electors. (See the provision for “Determination of controversy as to appointment of electors," appendix B, pp. 25-26.) If they disagree, the votes cast by the persons whose names appear on the list signed by the governor of the state will be counted.

If No Majority?

Once the Congress has met and counted and certified the electoral votes, Amendment XII of the Constitution sets the basic provisions for decision if no presidential candidate has received the requisite majority:

From the persons having the highest numbers not exceeding
three on the list of those voted for as President, the House
of Representatives shall choose immediately, by ballot, the
President. But in choosing the President, the votes shall be
taken by states, the representation from each state having
one vote; a quorum for this purpose shall consist of a mem-
ber or members from two-thirds of the states, and a majority
of all the states shall be necessary to a choice.

The House Chooses a President

Should a presidential election be thrown into Congress for decision, there are precedents, rules, laws, and procedures for making decisions—but also much room for the particular Congress to determine its own format and rules.

Provisions in Amendments XII and XX of the Constitution determine the basic role of the House of Representatives in this process. With regard to the mechanics of the House decision, the House, as in other matters, sets its own rules and procedures. The precedents set by the House in February 1825 in deciding the election of 1824 provide some guidance. (See appendix D, pp. 35–37.) The House could follow these precedents, or if it wished, ignore them and draw up a new set of procedures. The new procedures would be unlikely to differ greatly from the 1825 set, except in one key respect-in 1825, the old, or lame-duck, House made the presidential selection. Amendment XX changed the date of convention of the new Congress from March 20 to January 3, thus seating the new Congress before the January 6 statutory date for counting the electoral votes in Congress. Congress could conceivably set this statutory date back, empowering the old Congress to make the presidential decision. That is most unlikely, however, particularly since the record of deliberation on Amendment XX reflects a clear intention to have this decision in the hands of the new Congress.

Of the specific precedents from 1825, one is of particular significance: the requirement of a majority of a state's whole delegation to vote for a candidate in order for the state vote to be cast. If no candidate got a majority, the state was recorded as divided, and no vote was cast. In the Ninety-eighth Congress, twenty-nine state delegations have Democratic majorities, eleven have Republican majorities, and ten are evenly divided between the two parties. It would require few House seats shifting from one party to the other in the

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