|
Election Day is November 4, 2008
A Procedural Guide to the Electoral College
Prepared by The Office of the Federal Register
The Electoral College in Brief
The Electoral College was established by the founding fathers as a compromise
between election of the president by Congress and election by popular vote.
The electors are a popularly elected body chosen by the States and the District
of Columbia on the Tuesday after the first Monday in November (November 4, 2008).
The Electoral College consists of 538 electors (one for each of 435 members
of the House of Representatives and 100 Senators; and 3 for the District of
Columbia by virtue of the 23rd Amendment).
Each State's allotment of electors is equal to the number of House members to
which it is entitled plus two Senators. The decennial census is used to reapportion
the number of electors allocated among the States.
The slates of electors are generally chosen by the political parties. State laws vary on the appointment of electors. The States prepare a list of the slate of electors for the candidate who receives the most popular votes on a Certificate of Ascertainment. The Governor of each State prepares seven original Certificates of Ascertainment. The States send one original, along with two authenticated copies or two additional originals to the Archivist of the United States at the National Archives and Records Administration (NARA) by registered mail. The Certificates of Ascertainment must be submitted as soon as practicable, but no later than the day after the meetings of the electors, which occur on the first Monday after the second Wednesday in December (December 15, 2008). The Archivist transmits the originals to NARA's Office of the Federal Register (OFR). The OFR forwards one copy to each House of Congress and retains the original.
The electors meet in each State on the first Monday after the second
Wednesday in December (December 15, 2008). A majority of 270 electoral
votes is required to elect the President and Vice President. No Constitutional
provision or Federal law requires electors to vote in accordance with the
popular vote in their State.
The electors prepare six original Certificates of Vote and annex a Certificate
of Ascertainment to each one. Each Certificate of Vote lists all persons
voted for as President and the number of electors voting for each person
and separately lists all persons voted for as Vice President and the number
of electors voting for each person.
If no presidential candidate wins a majority of electoral votes, the
12th Amendment to the Constitution provides for the presidential election
to be decided by the House of Representatives. The House would select the
President by majority vote, choosing from the three candidates who received
the greatest number of electoral votes. The vote would be taken by State,
with each State delegation having one vote. If no Vice Presidential candidate
wins a majority of electoral votes, the Senate would select the Vice President
by majority vote, with each Senator choosing from the two candidates who
received the greatest number of electoral votes.
The States
The United States Constitution and Federal law place certain responsibilities
relating to the Presidential election upon State executives and the electors
for President and Vice President. Neither the Constitution nor Federal
law prescribe the manner in which each State appoints its electors other
than directing that they be appointed on the Tuesday after the first Monday
in November (November 4, 2008). The Constitution forbids a Senator, Representative,
or person holding an office of trust or profit under the United States
from being appointed as an elector.
In most States, the electors are appointed by state-wide popular election.
The slate of electors for the candidate who receives the most popular votes
is appointed. The slates of electors are generally chosen by the political
parties. However, the States' laws vary on the appointment of electors.
In Maine and Nebraska, two electors are chosen at-large by state-wide popular
vote and the rest are selected by the popular vote in each congressional
district. As a result, the electoral procedure in these States permits
a split slate of electors to be chosen.
After the general election, the Governor of each State and the Mayor
of the District of Columbia prepare a Certificate of Ascertainment of the
electors appointed (herein, the term "Governor" includes the
Mayor of the District of Columbia). The Certificate of Ascertainment must
list the names of the electors appointed and the number of votes received
by each. It must also list the names of all other candidates for elector
and the number of votes received by each. The Certificate must be signed
by the Governor and carry the seal of the State. The format of the Certificate
is not dictated by Federal law, but conforms to the law or custom of the
submitting State.
The Governor must prepare seven original Certificates of Ascertainment. One original, along with two authenticated copies (or two additional originals) must be sent by registered mail to the Archivist of the United States, National Archives and Records Administration. The Certificates should be sent as soon as practicable after the election, but must be submitted to the Archivist no later than the day after the meetings of the electors, which occurs on December 15, 2008. The other six originals must be delivered to the State's electors on or before December 15, 2008.
On the first Monday after the second Wednesday in December (December
15, 2008), the electors meet in their respective States. The State legislature
may designate where in the State the meeting will take place. It usually
takes place in the State capital, often in the capitol building. At this
meeting, the electors vote by ballot for President and Vice President.
There must be distinct ballots for President and Vice President. The electors'
votes are recorded on a Certificate of Vote. This Certificate must contain
a list of all persons voted for as President and the number of electors
voting for each. It must also contain a list of persons voted for as Vice
President and the number of electors voting for each. The names of candidates
receiving no electoral votes do not appear on the Certificate of Vote.
There is no Constitutional provision or Federal law requiring electors
to vote in accordance with the popular vote in their States. In the 1976
election, a Washington elector pledged to President Gerald Ford voted for
Ronald Reagan. In the 1988 election, a West Virginia elector voted for
Senator Lloyd Bentsen as President and for Governor Michael Dukakis as
Vice President. But some State laws require electors to cast their votes
according to the popular vote and provide that so-called "faithless
electors" may be subject to fines or may be disqualified for casting
an invalid vote and be replaced by a substitute elector.
The format of the Certificate is not dictated by Federal law, but is
determined by the law or custom of each State. Six original Certificates
of Vote must be prepared by the electors. Each Certificate must be signed
by all of the electors. One of the six Certificates of Ascertainment forwarded
to the electors by the Governor must be attached to each of the six Certificates
of Vote. Each of the six pairs of Certificates must be sealed and certified
by the electors to be the list of votes of that State.
The six pairs of Certificates are distributed as follows:
– One pair, by registered mail, to the President of the United States Senate,
The Capitol, Washington, DC 20510;
– Two pairs, by registered mail, to the Archivist of the United States, National
Archives and Records Administration, c/o Office of the Federal Register (NF), 8601 Adelphi Road, College Park, MD 20740-6001;
– Two pairs to the Secretary of State of the State, one of which is held subject
to the order of the President of the United States Senate, the other to
be preserved by the Secretary for public inspection for one year; and
– One pair to the chief judge of the Federal district court of the district
in which the electors meet.
Since there is a very short time between the meetings of the electors
in the States and the counting of the electoral votes by Congress, and
the meetings of electors coincides with the December holiday mail season,
it is imperative that these Certificates be delivered as soon as possible.
After the Certificates of Ascertainment and Certificates of Vote are delivered
to the appropriate persons, the States' functions in the electoral process
are completed.
NARA and Office of the Federal Register Procedures
The Archivist of the United States is required by law to perform certain functions
relating to the electoral college (3 U.S.C. sections 6,
11, 12, 13).
The Archivist has delegated to the Director of the Federal Register the authority
to carry out the administration of the electoral college process.
Prior to the General Election
In October of each Presidential election year, the Archivist sends
a letter to the Governor of each State and the Mayor of the District of
Columbia along with an instruction package prepared by the Office of the
Federal Register (OFR) that sets out the States' responsibilities regarding
the electoral college. The package also includes a quantity of booklets
containing applicable Federal Constitutional and statutory provisions regarding
presidential elections to be distributed to each elector.
Also in the month prior to the election, the OFR contacts the Assistant
Secretary of the Senate and the House Parliamentarian to make arrangements
for the delivery of the electoral college certificates to Congress. And
finally, in the month prior to the election, the OFR prepares to receive
the electoral college certificates from the States. The OFR makes special
arrangements with the Archivist's mailroom staff and messenger service
to establish procedures for handling the Certificates and transmitting
them from the Archives to the OFR.
After the General Election
During the week following the general election, the OFR calls the Governor's
Office in each State and the Mayor's Office in the District of Columbia
to make a personal contact with a person responsible for the electoral
college process. In some States, the Secretary of State is the official
designated to administer the electoral college, but other State officials
may be assigned this responsibility according to State law or custom. The
OFR confirms that materials mailed in October have arrived and reviews
the States' plans for carrying out their responsibilities.
Receipt of Certificates of Ascertainment
Certificates should begin arriving at NARA shortly after the general
election held on November 4, 2008. The Archives makes a record of the Certificates
of Ascertainment it receives and transmits them to the OFR's Legal Affairs
and Policy Staff by special delivery. The OFR logs in a record of the Certificates
and checks them for facial legal sufficiency. If there are any problems
with a Certificate, an OFR attorney calls the contact person in the
State to advise them of the defect. The OFR makes copies of the Certificates
of Ascertainment available for public inspection and secures the originals.
Receipt of Certificates of Vote
Certificates of Vote should begin arriving at NARA shortly after the
State meetings of the electors held on December 15, 2008. Certificates
of Vote are recorded on a log sheet when received at the Archivist's office
and at the OFR. Each Certificate is checked for facial legal sufficiency,
and if there are any problems with a Certificate, an OFR attorney calls
the contact person in that State and the Assistant Secretary of the Senate
to inform them of the problems and offer advice as to a solution. After
the Certificates of Vote have been determined to be facially sufficient,
the OFR makes copies of them available for public inspection and secures
the originals.
Certificates of Ascertainment Transmitted to Congress
The OFR prepares cover letters for the Archivist's signature to accompany
the Certificates of Ascertainment transmitted to Congress. The OFR hand
delivers the Certificates and cover letters to the Vice President's Office
in the Senate (the Vice President is the President of the Senate) and the
Speaker's Room on the House side of the Capitol and obtains a receipt.
If all the Certificates of Ascertainment are received in a timely fashion,
they are sent to Congress in one group. However, late arriving Certificates
may also be hand delivered separately to Congress so that transmittal of
the other Certificates is not delayed.
Certificates of Vote Subject to the Call of the President of the
Senate
The OFR holds one of the two original Certificates of Vote subject to the
call of the President of the Senate in the event that one or more Certificates
fail to reach the Senate in a timely manner. If the Archivist does not receive
a Certificate of Vote from a State by a week after the electors meet, the OFR
calls that State's contact person to make sure the Certificates were mailed.
If the Certificates were not mailed, the OFR advises the State to transmit the
Certificates by express mail. If the Certificates were mailed and are overdue
in arriving, the OFR calls the Postal Service to request that it trace the package.
Finally, if no Certificate of Vote is received from a State by the fourth Wednesday
in December after the election, the OFR employs the procedural steps set forth
at 3 U.S.C. sections 12 and 13
by securing a duplicate from the Secretary of State of the State or by dispatching
a special messenger to obtain the duplicate held by a Federal District judge
and hand carrying it to Washington D.C.
Preserving Certificates
After Congress has met in joint session for the official counting of
electoral votes, all Certificates of Ascertainment and Certificates of
Vote in OFR's files are combined into one file. Each file contains all
Certificates from a State, any cover letter accompanying the Certificates,
and any envelopes bearing certifications of electors' votes. The files
are placed in archival boxes and made available for public inspection at
the OFR for one year and then transferred to NARA for permanent retention.
The Congress
House and Senate staff come to the Office of the Federal Register (OFR)
to inspect the Certificates of Vote in late December. Because the statutory
procedure prescribes that the Certificates of Vote sent to the President
of the Senate be held under seal until Congress opens and counts them in
joint session, the Congress depends on the OFR to ensure the facial legal
sufficiency of Certificates. If any State's Certificate fails to reach
the President of the Senate, the President of the Senate calls on OFR to
deliver duplicate originals in its possession to complete the set held
by Congress. After the 1988 general election, the President of the Senate
called for nineteen of the Certificates of Vote held by the OFR. For the
1992 election, the OFR supplied the Congress with two missing Certificates
of Vote.
The Congress is scheduled to meet in joint session in the House of Representatives
on January 6, 2009 to conduct
the official tally of electoral votes. The Vice President, as President of the
Senate, is the presiding officer. Two tellers are appointed to open, present
and record the votes of the States in alphabetical order. The President of the
Senate announces the results of the vote and declares which persons, if any,
have been elected President and Vice President of the United States. The results
are entered into the official journals of the House and Senate. The President
of the Senate then calls for objections to be made. If any objections are registered,
they must be submitted in writing and be signed by at least one member of the
House and Senate. The House and Senate would withdraw to their respective chambers
to consider the merits of any objections according the procedure set out under
3 U.S.C. section 15.
|
