One Job – Follow the Constitution

Stephen Howard — Stone River Law

Real People. Real Solutions.

One Job – Follow the Constitution

Posted January 2, 2021

Congress’ Role in a Presidential Election

The Constitution of the United States gives Congress one job to be performed on the 6th day of January, 2021 — to “open” and “count” the votes of each State’s electors.

Certain members and members-elect of Congress have recently cited to the disputed presidential election of 1876-77 as precedent for an expanded role for Congress as intervenors in the electoral process. It should be remembered, however, that the circumstances and events surrounding the 1876-77 election are viewed by many as creating a Constitutional Crisis.

Article II Section 1 of the Constitution, as modified by the Twelfth Amendment, addresses the responsibilities of the electors and the role of Congress in the election of a President. To understand the proper role of Congress, a review of these Constitutional provisions is appropriate.*

*All materials quoted below are taken directly from Article II Section 1 or from the Twelfth Amendment.

Appointment of Electors by the States

The United States of America is a nation originally created by the union of individual sovereign States. The President of these United States is not elected by a national popular vote. Instead, the Constitution provides that the President is to be chosen by the vote of the electors who have been appointed by each individual state.

Consistent with the nature of our federal system, the Constitution establishes that these electors are to be appointed by each State “in such Manner as the Legislature thereof may direct.” The Constitution gives Congress neither the power to appoint any State’s electors nor the authority to dictate the selection process that a State must use in selecting its electors. Nor does Congress have any power to overrule a State’s final appointment of its own electors.

The Constitutional Responsibilities of the Electors

After a State has appointed its electors, the Twelfth Amendment requires that those electors “meet in their respective States, and vote by Ballot for two Persons.” The electors in each state then “shall make a List of all the Persons voted for, and of the Number of Votes for each.” The electors’ final responsibility is to then “sign and certify, and transmit [that list] sealed to the Seat of the Government of the United States, directed to the President of the Senate.”

Congress Opens and Counts

The authority and power of Congress in relation to the next step in the electoral process is set forth in a single sentence. Amendment XII states simply, “The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the certificates, and the Votes shall then be counted.” That is all – open and count.

The Twelfth Amendment conditionally provides other authority and instruction for Congressional action in the event that two persons were to receive an equal number of electoral votes. But in the absence of a tie, Congress’ job under the Constitution is done once the electoral votes have been opened and counted.