As we near the end of the US Presidential race, elections have taken center stage in American consciousness. Headlines about recounts and possible non-concession have brought back memories of the Bush-Gore legal battles over Florida and a general re-interest in election law. But, where exactly does election law come from? While the nuts and bolts of the actual elections is left to the states, the United States Code lays out a very particular, partly unknown, and maybe even esoteric set of steps required to elect the Preside of the United States. So, come with me on an educational and entertaining journey through Title 3, sections 1-20 of the US code. Make sure to hold on to your hats- things might get weird.
3 U.S.C. § 1 – Time of appointing electors
This is straightforward, mostly. The states appoint their electors, the people who actually elect the president, on the “Tuesday after the next Monday in November” following the presidential election. Yes, you read that right. States don’t even pick their electors until after the election. Contrary to popular belief, the citizens of the US do not actually elect the president, electors do. Each state decides how the vote of their citizens effects the votes of the electors. Typically, the electors select whichever candidate wins the state. However, Nebraska and Maine election laws allow the states to split their electoral votes proportionally according to the popular vote.
3 U.S.C. § 2 – Failure to make a choice on proscribed day
If the state fails to choose electors on the proscribed day, the job then falls to the state legislature.
3 U.S.C. § 3 – Number of electors
This is probably the best known of the US election statutes. The states get a number of electors equal to their number of Senators and Representatives.
3 U.S.C. § 4 (2012) – Vacancies in Electoral College
States can fill any vacancies in their electors when those electors meet to actually vote.
3 U.S.C. § 5 – Determination of controversy as to appointment of electors
This one is strange. If the states choose, they can create procedures for settling any controversy in the picking of electors. However, 3 U.S.C. § 5 requires that these procedures make a determination at least six days before the state electors meet to cast their votes. Don’t want to hold up the entire US Presidential election because of a few people fighting over who gets to be their states proxy vote now, do we?
3 U.S.C. § 6 – Credentials of electors; transmission to Archivist of the United States and to Congress; public inspection
Ok, this one is a bit long, and weird. The executive of each state, typically the Governor, “as soon as practicable” must give “a certificate of ascertainment” , by certified mail, of all the state’s electors to the Archivist of the United States. If the electors are chosen by votes, the governor has to include the number of votes too. The governor must also send six duplicates of this certificate to each of the state’s electors. If there was a controversy, the Governor must also send a certificate stating the outcome of that controversy. The Archivist must keep all of these certificates for at least one year for public inspection, and give copies to both the house and senate of each and every certificate received. I’m pretty sure certificate means letter or document in “Old Timey Government English”, and this whole electoral process stems from a time when electors had more power (ie. they were less likely to listen to the state’s voters.) However, it a nice piece of election tradition as well as a reminder of American history, so, why not? Lets keep going!
3 U.S.C. § 7 (2012) – Meeting and vote of electors
Finally, an easy one. Electors shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State. That’s right, again. The entirety of the nation is well aware of who is going to be the president well before they are actually elected by the electors.
3 U.S.C. § 8 – Manner of Voting
Another easy one. The electors vote as directed by the constitution. We’ll save the constitution for another day.
3 U.S.C. § 9 – Certificates of votes for the President and Vice President
The electors must make and sign six certificates, with each certificate containing two lists; one for president and the other for the vice president. Yes, for each electoral vote they must provide six signed certificates. They also attach one of the lists of electors given to them by the executive of the state, or Governor, to each certificate.
3 U.S.C. § 10 – Sealing and endorsing certificates
Another easy one- they have to seal and endorse the certificates. That’s all this law says. You’d think they could have just rolled that into § 9.
3 U.S.C. § 11 – Disposition of certificates
What do they do with all these new certificates? § 11 and I are both glad you asked. The electors deliver the certificates as follows: one to the President of the Senate, one to the Secretary of the State, two to the archivist of the US, and one to the judge of the district where the electors assembled. The archivist must keep one of the copies in case the president of the senate requests it, and the other for public inspection.
3 U.S.C. § 12– Failure of certificates of electors to reach President of the Senate or Archivist of the United States; demand on State for certificate
This seems to be another section of the law that was much more important before you could pick up a phone and ask the governor; “hey! Governor! Where are all the certificates?” If the certificates fail to arrive to the President of the Senate or the Archivist by the fourth Wednesday in December, probably a week after the voting, The President of the senate should request the backup certificates from the Secretary of the State. § 12 also says that the Archivist should serve as back up, and do the requesting if the President of the Senate is absent.
3 U.S.C. § 13 – Same; demand on district judge for certificate
The reason for the six certificates, and the preference by the drafters for multiple contingency plans, is becoming more evident. If the President of the Senate or the Archivist strike out with the Governor, they then should ask the District Judge.
3 U.S.C. § 14 – Forfeiture for messenger’s neglect of duty
So you were supposed to deliver the certificates to the President of the Senate, or Archivist, and you forgot? Do not pass go. Forfeit $1000. Seriously. If you mess this up, by law, you must forfeit $1000.
3 U.S.C. § 15 – Counting electoral votes in congress
Where: The sixth day of January succeeding every meeting of the electors, The House of Representatives
Who: Congress, both houses, the whole thing.
When? 1:00 pm
What: Counting the votes. This section lays out, in tedious minutia, the rules for counting the electoral votes. This whole thing is too long to cover here, but some of the highlights are: The President of the Senate open the envelopes. The state’s votes are counted in alphabetical order, starting with the letter “A.” As they are opened, the envelopes should be immediately handed to two previously appointed tellers. The counts are entered into both the House and Senate Journals. Objections must be made in writing, and be signed by a member of both the House and Senate. After all objections to a vote are received and read, the Senate leaves the House so each can debate independently. But, so long as the electors were correctly certified, there’s not much either body can do.
3 U.S.C.A. § 16 – Same; seats for officers and Members of two Houses in joint meeting
But where is everyone going to sit? Thank goodness, the statutes actually tell us. President of the Senate: Speakers Chair; Speaker – on the Presidents left; Senators – the hall on the Right; Representatives – anywhere the Senators are not sitting; Tellers, Secretary of Senate, Clerk of The House – at the Clerks Desk; Other various officers – in front of the Clerk’s desk and upon each side of the Speaker’s platform. This section also states that they can’t dissolve the meeting until all the votes are counted and the winner declared. They cannot take a recess unless they have some question about the votes. Even then, they cannot declare a recess beyond the next calendar day, Sunday excepted, at 10:00 “in the forenoon.” If they haven’t completed the counting by the fifth calendar day, they cannot take any more recesses.
3 U.S.C.A. § 17- Same; limit of debate in each House
If the two houses separate to decide on an objection, as per § 15, each Senator or Member can only speak for five minutes, and not more than once. The whole debate cannot go on more than two hours. Limited filibustering only.
3 U.S.C.A. § 18 – Same; parliamentary procedure at joint meeting
The president of the senate has the power to preserve order.
3 U.S.C.A. § 19 – Vacancy in offices of both President and Vice President; officers eligible to act
Like the constitution, we’ll deal with vacancies at another time.
3 U.S.C.A. § 20 – Resignation or Refusal of Office
….must be in writing and delivered to the secretary of state. Thank goodness, this is over.