Counting of and Challenging Electors

Blog Articles · Jan 5, 2021

Statement from The Heritage Foundation:

WASHINGTON — Heritage Foundation President Kay C. James made the following statement about the upcoming action in Congress about the presidential election results.

As prescribed by the Constitution, Congress will meet this week to count the electoral votes and declare the results of the presidential election. This process allows members of the Senate and House of Representatives to affirm or object to the electoral vote returns of individual states.
We must allow this process to play out in accordance with the Constitution. I welcome any effort to examine the facts and to shine a bright light of transparency on the electoral process.
The American people deserve election results they can trust. That only works when America has a secure, transparent, and peaceful vote-counting process. Every legal vote must count and every elected official has the duty to uphold the rule of law and the Constitution. The functioning of our republic depends on accurate and reliable election results.
Soon this Electoral College process will be complete. It’s a system that has served our country well for more than 200 years. Only after Congress has acted and all objections are heard will America have a new president. Regardless of the outcome, The Heritage Foundation stands ready to work on behalf of the American people to advance conservative policies.

To help guide Grassroots Activists throughout the country on what to expect this week, please see the below Fact Sheet outlining the process and procedures:

Who participates in the electoral college process?

United States law directs the electors appointed by the states to meet on the first Monday after the second Wednesday of December in a presidential election year. The place of their meeting is designated by state legislatures, and the electors cast their votes for president and vice president. The votes are placed on certified lists and transmitted to the U.S. Senate.

The Constitution of the United States directs the House of Representatives and the Senate to meet in a joint session to receive and count the certificates of election as certified by the states. A majority of electors’ votes has to be received by a candidate for president and a candidate for vice president in order for them to take office. In the case of no person receiving a majority of electors’ votes, the House is directed to choose the president, and the Senate is directed to choose the vice president. Thomas Jefferson and John Quincy Adams were elected president in this manner.

When does the joint session meet?

U.S. law directs the House of Representatives and the Senate to meet in a joint session to count the electoral votes at 1:00 PM on January 6, unless there is an alternative date established by law. The joint session is presided over by the vice president of the United States, who is the president of the Senate.

What happens during the joint session?

U.S. law prescribes the process of the joint session; however, by tradition, the House of Representatives and the Senate agree to a set of procedures for the joint session. The electoral votes are counted by tellers who have been picked by the presiding officers of each house of Congress: the speaker of the House and the president of the Senate. The roll call of the states follows alphabetical order, and the electors and any materials related to the election are presented to the joint session. In the case of a state sending more than one slate of electors, all the sets of electors and any materials from the state are presented to the joint session. The House of Representatives and the Senate then decide which slate of electors is valid, and the tellers count those electors.

Are members of Congress allowed to object to the electors?

Members of Congress are constitutionally allowed to object provided the objection is made in writing, is directed at a particular electoral vote or set of electoral votes, and is signed by at least one House member and one senator. Once a proper objection is made, the two houses of Congress divide and consider the objection. Debate is allowed in each house followed by a vote in each house as to whether the objection should be accepted or rejected. If either house rejects the objection, the presiding officer, generally the president of the Senate, directs the tellers to record the electoral votes as submitted by the state.

How does the process conclude?

The vice president of the United States, in their role as president of the Senate and as presiding officer of the joint session, directs the tellers to count the votes of each state and announce them, hears objections from members of the House and Senate, and ensures that members of the public present do not interfere with the counting of votes. Once the tellers have completed the roll of the states and the votes of each state, the vice president announces the total number of votes for each candidate for president and vice president and reports to the joint session which presidential candidate and which vice presidential candidate has won the election.

If you would like to watch the process, here is the link for the joint session of Congress which met on January 6, 2017 to certify the election of Donald Trump and Mike Pence.