The process for electing a president of the United States continues to play out according to the Constitution. It includes several steps, none of which involve media organizations calling the race or projecting winners.
Instead, states count the votes for the purposes of choosing electors to vote in the Electoral College, and the Electoral College’s tally must be certified by Congress. In many presidential election years, these actions are viewed as mere formalities, but in some close races throughout our history, they have been contested well after the ballots of individual voters were cast.
The act you are likely most familiar with is going to the polls on Election Day to vote for president. This process is primarily under the control of the states, so the 50 states can differ on which candidates are on the ballot, absentee and mail-in voting policies, early voting, and so on. As we have seen this year, states also differ in how quickly they count the votes.
The Constitution and federal laws, however, do guarantee fundamental protections to voters.
For example, the Fourteenth Amendment holds that a state cannot “deny to any person within its jurisdiction the equal protection of the laws.” This clause was decisive in 2000. The U.S. Supreme Court ruled that a statewide manual recount in Florida ordered by the state Supreme Court would violate the Fourteenth Amendment because counties had different standards for the recount, denying equal protection for voters within the state.
That case was decided by the Supreme Court on December 12, 2000, after more than a month of recounts and litigation between the campaigns of Al Gore and George W. Bush. This example shows that candidates have the right to pursue legal remedies well after the polls close.
The vote count in the states decides their slate of electors for the Electoral College. The Constitution allows state legislatures to decide on their electors however they want, but all states except two award every one of their electors to the winner of the state’s popular vote. Maine and Nebraska allocate electors based on winners in their congressional districts.
The electors meet in their states on the first Monday after the second Wednesday in December, which falls on December 14 this year. They vote by ballot, and the results are sent to Washington for counting.
Federal law sets January 6 as the day for the House of Representatives and the Senate to meet in joint session to count the Electoral College vote. The vice president, acting in his or her capacity as president of the Senate, presides. He or she opens the certificates from each state in alphabetical order and gives them to the four tellers, two appointed from each chamber, to be announced. The final results are announced by the vice president.
During the count, Members of Congress can challenge votes, and they have. I was in the House chamber on January 6, 2017 when several House Democrats frequently interrupted the count by challenging the results of multiple states. Their protests failed because the law requires challenges to be submitted in writing with endorsements from at least one representative and one senator, and no senators had joined their protests.
In 2005, the joint session certifying President Bush’s reelection had to recess because a challenge to his victory in Ohio did have support in both chambers. As a result, the House and the Senate had to separately debate and vote on the challenge. Both rejected it.
As you can see, the standard procedure for electing a president takes a few months, and while it can be a formality, the system allows for contention and legal challenges.
This does not even take into account extraordinary circumstances, such as those found in the 1876 election during the Reconstruction era. That year, the results in Florida, Louisiana, and South Carolina were disputed, while an elector in Oregon was disqualified and replaced. The deadlock led Congress to appoint a commission to decide the matter; it awarded the disputed votes and thus the presidency to Rutherford B. Hayes only days before the inauguration was to take place.
In the presidential election process, the length of time to declare a winner is not as important as ensuring that all the steps are conducted fairly and with integrity according to our Constitution and laws.
That is the process we are wading through and waiting for now. And that’s why it’s not over.
For questions, concerns, or comments, call my Abingdon office at 276-525-1405, Christiansburg office at 540-381-5671, or via email at www.morgangriffith.house.gov.
