• Anne Lipsett

Certification and Objection: Electoral College and the Final Stage of the US Presidential Election

On 6 January 2021, the United States Congress met in a joint session to certify the results of the 2020 Presidential elections. That same afternoon, rioters stormed the Capitol building, forcing Congress into recess. After the riot had been subdued, members of Congress returned to the chamber to finish the process. Some lawmakers objected to the electoral votes, citing concerns over election integrity. While this process of objection has come under the microscope recently, it is crucial that it is understood objectively.


The Electoral College


Article II, Section 1 of the US Constitution explains the Electoral College as follows:


“Each State shall appoint…a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled…”.


The Electoral College is a process established as a compromise between electing the next President in Congress and an election by popular vote. By voting in the election, the average American citizen is voting for electors.


The election process begins with primaries for each party which have multiple candidates. Each state holds its own primary and the winner will become that party’s candidate. The general election is held every four years in November and a majority of 270 electoral votes is required to elect the President. On the following 6 January, the two houses of Congress hold a joint session to count each state’s electoral votes and certify the election results.


History of Objection


In the beginning days of the United States government, there was no formal process for objecting to the election, only recorded disputes of the results. In 1796, John Adams was Vice President, and as President of the Senate (the Vice President holds this position), it was his job to count the votes. A problem arose when he counted and then declared that he was the winner; these results were disputed but they held and Adams became President. The same issue arose when Thomas Jefferson was elected. When the 12th Amendment was ratified, there was hope it would eradicate this issue, but the problems continued.


It was the election of 1876 that brought change to the system. In the years following the Civil War, there was a dispute between members of Congress from the North and South that lasted weeks until an agreement could be struck. Dissatisfied congressmen called for a review of the election process and from that discussion came the Electoral Count Act of 1887. By creating a formal process for objecting, it aimed to avoid long stalemates and gives congressmen the opportunity to voice concerns in a civilized arena.


The Process


Certifying the election results is the final phase before the inauguration. The Congressional Research Service’s (CRS) current interpretation of the Act is as follows:


“Objections to individual state returns must be made in writing by at least one Member each of the Senate and House of Representatives. If an objection meets these requirements, the joint session recesses and the two houses separate and debate the question...The two houses then vote separately to accept or reject the objection. They then reassemble in [a] joint session, and announce the results of their respective votes. An objection to a state’s electoral vote must be approved by both houses in order for any contested votes to be excluded”.


There can be no general objection to the election results; it must be done on a state-by-state basis. The need for a member of each house to support an objection ensures it is legitimate.


This interpretation by the CRS provides a clear outline of the process, but the Act is constructed with ambiguous language, calling into question its legislative authority. The complexity and poor drafting have made this process a target of significant criticism as people feel it further removes the American people from the election process. However, this criticism does not approach the issue correctly. The Act was designed to protect the United States election process from corruption. If concerns are raised in the two months following the general election, this gives an opportunity to review those claims and ensure incorruptibility.


Within the 21st century, there have been multiple cases of objection in Presidential elections, with the most notable being the 2000 and 2020 elections.


The 2000 Election


In the 2000 Presidential election, George W. Bush won the electoral college but his opponent, Al Gore, won the popular vote. Such a split had not been seen since the 1888 election of Benjamin Harrison. The usually quick routine of certifying the votes for the Presidential election was now rife with debate as nearly one dozen members of the House of Representatives voiced their objections to the results of the Florida race. These representatives were members of the Congressional Black Caucus and based their objections on the grounds that black voters face disenfranchisement. Florida was a crucial state in Bush’s win and the results were part of ongoing legal disputes revolving around the election. However, as the Electoral Count Act of 1887 states, an objection requires support from both the House and the Senate in order to be considered. The House members had no support from the Senate, so their objections were ruled as out of order. The votes were certified and Bush won 271 electoral votes.


The 2020 Election


The most recent objection occurred during the 2020 election. While Congress was meant to proceed with the certification, far-right groups broke into the Capitol and delayed the process. Once the rioters had been subdued and removed from the Capitol building, former Vice President Mike Pence called Congress back into session and proceeded with the certification. Several Republican lawmakers objected to the results on the grounds of voter fraud and called for an audit of the results. Of the objections raised, only two states – Arizona and Pennsylvania – had support from the House and Senate, which required the bodies to meet separately and debate the objections. Both objections were unsuccessful and President Joe Biden was declared the victor.


Conclusion


While not seen in every election, the process of objecting to Electoral College votes in Congress is not uncommon. The Act itself is vague but all certification proceedings have been properly carried out according to the contemporary understanding of its language. It is not meant to suppress the voice of the people, rather it is a mechanism to ensure the integrity of the election.