Demystifying the US Law of the Electoral Count
Posted on 04 Jan 2021; 00:15 AM IST. Last Updated 04 Jan 2021; 11:30 AM IST.Summary: This article attempts to demystify the lingering doubts and questions, about the US Law of the Electoral Count.
The Jan 06, 2021 Electoral vote count process, would formally establish the president elect in the 2020 US election. There are several lingering doubts and questions, about the Law of the Electoral Count, in people’s minds, and unfortunately, the internet is full of inaccurate news.
This article attempts to demystify some of the doubts and questions on the Electoral vote count process.
- How the process works?
Answer: The president of the senate (Vice President), along with House of Representatives and the Senate, will count
the Electoral Votes.
- Is the Role of Vice President limited to just counting?
Answer: No. The Vice President is the presiding officer, and oversees the execution of the process. The presiding officer has enormous powers and should not be confused with the “Teller(s)”, who read out the votes.
- Can the Vice President directly determine the outcome?
Answer: No. The Vice President is the presiding officer, and per the constitution of USA, the presiding officer cannot directly determine the outcome of the process.
- What is the role of the Vice President in the counting process?
Answer: The Vice President is the presiding officer, and can rule on the outcomes of actions of both houses, schedule or deny motions.
- Can the Vice President indirectly determine the outcome?
Answer: Yes. The Vice President is the presiding officer, and has enormous power in determining the final outcome.
Note: The Vice President cannot make any determination directly, but can direct the houses to make the most appropriate
decision, and thus could indirectly determine the outcome.
- What is the process?
Answer: The votes of each state (in alphabetic order) are counted, and at the end, the Vice President declares the winner.
The votes of a state can be objected, and objections received for a state (in writing by a senator and a house representative), are debated for 2 hours, and finally after the debate the votes are either counted or rejected.
Typically, a state sends a single slate of electors, and objections are uncommon, and the counting process proceeds unnoticed, and rarely hits News headlines.
A state could send two slates of electors, and this brings the full extent of the law to the foreground, and into News Headlines.
The last time this happened was in 1880, and it is precisely at that time, the Law of the Electoral Count was devised.
- Where can I find the Law of the Electoral Count?
Answer: Title-3, Chapter-1, Section-15 of the US Code details the process of “Counting electoral votes in Congress”.
- Can I read and understand the Law of the Electoral Count?
Answer: Yes. It is a fine piece of legislature crafted in legal vocabulary. You don’t have to be a lawyer to read and understand legal documents.
- If a state sends two slates of electors, then is it necessary to raise an objection during the Electoral vote count process?
Answer: No. When a state sends multiple slates of electors, the Law of the Electoral Count automatically moves towards the
adoption of the motion to debate in both houses, to determine the legal slate of electors.
Note: The author of this article strongly believes an objection is not necessary, when there are multiple slates of electors. A moment of reflection reveals the same, since the presiding officer (Vice President), has to select one of the slates, or reject all slates; hence the motion for a debate is imminent, even if there are no objections.
- How does the Law of the Electoral Count work, when there are multiple slates of electors?
Answer: The process is very complicated, the relevant portions of the Law of the Electoral Count are detailed below, to illustrate the process, along with comments.
The portions of the law are enclosed in double quotes, and comments are enclosed in blocks prefixed with "***" tags.
Law Fragment:
"If more than one return or paper purporting to be a return from a State shall have been received by the President of the Senate, those votes, and those only, shall be counted which shall have been regularly given by the electors …;"
*** start of comments
President of the Senate received multiple slates of electors.
*** end of comments
Law Fragment:
"; but in case there shall arise the question which of two or more of such State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State, the votes regularly given of those electors, and those only, of such State shall be counted whose title as electors the two Houses, acting separately, shall concurrently decide is supported by the decision of such State so authorized by its law; … ".
*** start of comments
The state made a decision on who is the lawful tribunal of the State, to appoint electors, so authorized by its law.
The decision made by the two houses concurrently, is supported by the decision of such state, and is also authorized by its law.
It may be noted that neither the House of Representatives nor the Senate could formulate “State Laws”.
In short, both houses concurrently agree that the decision made by the state is valid, and is in accordance with the state laws.
In such a case, the votes shall be counted, based on the decision made by the state.
*** end of comments
Law Fragment:
"; and in such case of more than one return or paper purporting to be a return from a State, if there shall have been no such determination of the question in the State aforesaid, then those votes, and those only, shall be counted which the two Houses shall concurrently decide were cast by lawful electors appointed in accordance with the laws of the State, unless the two Houses, acting separately, shall concurrently decide such votes not to be the lawful votes of the legally appointed electors of such State”.
*** start of comments
The state did not make a decision on who is the lawful tribunal of the State, to appoint electors, so authorized by its law.
The decision made by the two houses concurrently, is supported by the laws of the state. In such a case, the votes shall be counted or rejected, based on the decision made by the two houses.
Neither the House of Representatives nor the Senate could formulate “State Laws”.
The presiding officer (Vice President) could setup the prevailing State Laws as “Initial Conditions”.
The vote of both houses may therefore be interpreted as a mechanical process, meant to uphold the State Laws, under the purview and ruling of the presiding officer. If a house were to vote on partisan basis, then it can possibly be viewed as a violation of the "Law of Electoral vote count", and could possibly lead to a court case.
*** end of comments
A Note On Interpretation: All the fragments of the law detailed above are written as a SINGLE STANZA, without a full stop, in Title-3, Chapter-1, Section-15 of US Code. This observation has many implications on its interpretations.
- What if both houses disagree with the appointment of electors, when there is more than one slate of electors?
Answer: The relevant portion(s) of the Law of the Electoral Count is detailed below, to illustrate the process, along with comments.
Law Fragment:
“But if the two Houses shall disagree in respect of the counting of such votes, then, and in that case, the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted”.
*** start of comments
There are many naive and inaccurate interpretations on internet, which claim that when both houses disagree, the electors certified by the executive of the State, shall prevail.
Some even insinuate that elections in US States need not be fair, and can be wrought with fraud.
All are dead wrong. The correct interpretation is as follows.
If a State has no prescribed laws on who is the lawful tribunal of the State to appoint electors, then the electors certified by the executive of the State, shall prevail, when both houses disagree on the lawful tribunal.
This condition may also be reached, when the lawful electoral slate is disqualified by the courts of the state.
*** end of comments
- Can you summarize the Electoral vote count process?
Answer: The president of the senate (Vice President), along with House of Representatives and the Senate, will count the Electoral Votes, in accordance with the respective “State Laws”.
In one sentence, “The State Laws prevail”.
- Can demonstrations of fraud (during elections) be allowed before the vote counting process?
Answer: Probably.
It is the opinion of the author of this article, that the vote counting process is cast into stone, and the demonstrations of fraud, could have no influence over the process.
The author also expresses the opinion that courts are the venue for processing raw evidence, and legislature may not act upon raw evidence, however convincing it may be.
- How an election fraud can be demonstrated, for the cognizance of the Electoral vote count process?
Answer: The author of this article believes that the following material may influence the decision making of the presiding officer of the Electoral vote count process.
a) Description of Lawful Tribunal for appointing Electors as per the prevailing State Laws, for each state disputed.
b) State Laws violated, which could have affected the result of the election, for each state disputed.
c) Favourable court rulings, which acknowledge or uphold laws of state, which could have affected the result of the election.
d) Pending court cases, where state laws are violated, which could affect the result of the election.
e) Reports from intelligence agencies on election fraud or foreign interference, which could have affected the result of the election.
Note: The Electoral Vote Count law by itself, does not offer any remedies for fraud in elections. The presiding officer could take cognizance of such matters, which are well supported by executive reports or judicial rulings, and may be able to exercise rights of presiding officers, granted by the constitution.
The phrase "lawful votes of the legally appointed electors" occurs at least once, in the verbiage of the law, and the essence of the statute appears to be concerned with establishing the "lawful votes of the legally appointed electors".