By VICTORIA SPARTZ
5th District Congresswoman
As someone who grew up in an oppressive socialist country without free and fair elections, I greatly appreciate the need to protect the integrity and legitimacy of our elections. It is critical to a free republic.
Contrary to the sensational media coverage, democracy is functioning. Like any President, elected official or candidate for office, President Trump has every right to contest election irregularities to the fullest extent of the law, just as Democratic and Republican candidates have done at all levels since the Founding.
There is a lot of discussion, as well as a lot of bad information, on the counting of electoral votes and procedures at the joint session of Congress on Jan. 6, so I would like to share an overview adopted from the report prepared by the Congressional Research Service on Dec. 8, 2020.
The Constitution provides that each state “shall appoint” electors for President and Vice President in the manner directed by its state legislature (Article II, Section 1, clause 2), on the day determined by Congress (Article II, Section 1, clause 3). Congress has determined in federal law that the “electors of President and Vice President shall be appointed, in each State” on Election Day, that is, the “Tuesday next after the first Monday in November” every fourth year (on Nov. 3, 2020) (3 U.S.C. §1).
The electors of each state meet at the place designated by that state on the first Monday after the second Wednesday in December (Dec. 14, 2020) to cast their votes for President and Vice President of the United States (U.S. Constitution, Amendment 12; 3 U.S.C. §§7-8).
The governor of each state is required by federal law to send to the Archivist of the United States, by registered mail and under state seal, “a certificate of such ascertainment of the electors appointed,” including the names and numbers of votes for each person for whose appointment as elector any votes were given (3 U.S.C. §6). At the first meeting of Congress, set for Jan. 3, 2021, the Archivist of the United States is required to transmit to the two houses every certificate received from the governors of the states (3 U.S.C. §6).
The date for counting the electoral votes is fixed by law as Jan. 6 following each presidential election (3 U.S.C. §15), unless the date is changed by law. The electoral votes are counted at a joint session of the Senate and the House of Representatives, meeting in the House chamber. The joint session convenes at 1 p.m. on that day.
Section 15 establishes a procedure for making and acting on objections to the counting of one or more of the electoral votes from a state. When an objection, properly made in writing and endorsed by at least one Senator and one Representative, is received, each house is to meet and consider it separately.
The joint session does not act on any objections that are made. Instead, the joint session is suspended, the Senate withdraws from the House chamber, and each house meets separately to debate the objection and vote whether, based on the objection, to count the vote or votes in question. Both houses must vote separately to agree to the objection by simple majority. Otherwise, the objection fails and the vote or votes are counted.
Section 17 lays out procedures for each house to follow when debating and voting on an objection. These procedures limit debate on the objection to not more than two hours, during which each Member may speak only once and for not more than five minutes. Then “it shall be the duty of the presiding officer of each House to put the main question without further debate.”
The general grounds for an objection to the counting of an electoral vote or votes would appear from the federal statute and from historical sources to be that such vote was not “regularly given” by an elector, and/or that the elector was not “lawfully certified” according to state statutory procedures. The statutory provision first provides in the negative that “no electoral vote … regularly given by electors whose appointment has been lawfully certified … from which but one return has been received shall be rejected” (3 U.S.C. §15). When the two houses disagree, then the statute states that the votes of the electors whose appointment was certified by the governor of the state shall be counted.
In the event that no candidate has received a majority of the electoral votes for President, the election is ultimately to be decided by the House of Representatives in which the names of the three candidates receiving the most electoral votes for President are considered by the House, with each state having one vote. In the event that no candidate receives a majority of the electoral votes for Vice President, the names of the two candidates receiving the highest number of electoral votes for that post are submitted to the Senate, which elects the Vice President by majority vote of the Senators.
The House and Senate are scheduled to convene in joint session on Jan. 6, 2021, for the purpose of opening the 2020 presidential election electoral votes submitted by state government officials, certifying their validity, counting them, and declaring the official result of the election for President and Vice President.
I hope this information is helpful as you read and hear about this joint session. I am committed to ensuring free and fair elections, and also that I will follow the Constitution, and give serious consideration to each objection presented. Looking ahead, we have a lot of work to do as a country to ensure all sides in our elections have confidence in the outcome of our elections, and election laws are only changed by the people through their state legislatures, not by judges, governors or election administrators.