Jump-Starting the Battle

So the opportunity for stopping Bush’s election is small: but there’s a great opportunity to use this process to open the political battle that the Democrats tragically failed to open when they had this same opportunity in 2000. If Democratic party leaders really mean what they say about getting in the face of George Bush, then here’s the place to start, with this unprecedented challenge to the validity of Bush’s election in the first place.

The very fact that there was an official objection and debate at all would be historic.

And it’s a debate that the Democrats should be able to use to rock the Republicans back on their heels. Why not use the opportunity not only to undercut the legitimacy of Bush’s election, but also to announce a comprehensive legislative package to clean up the country’s election system: a package that people could easily see would do a better job toward seeing that “every vote is counted?”

Under the rules, each house will have two hours of debate. The Democrats have every right to demand at least one hour of that time in each house, and they should raise holy hell if the Republicans try to short-change them on time. That’s two full hours of what should be the most riveting TV since the Watergate hearings. Do I think the Republican-led House or Senate will vote to accept any objection to Bush’s election? No.  But a vote to uphold Bush's election should set up anyone, Democrat or Republican, as an anti-democratic, hypocritical elitist who supports an electoral system that is clearly designed to limit or destroy the ability of millions of Americans to have their say at the polls.

Part II: How the Process Works

(This section is a narrative about how the process works. Part III has the actual text from the law.)

I went digging in the United States Code, Title 3, Chapter 1, “Presidential Elections and Vacancies,” the chapter of law that governs this phase of the election process. Here's what happens if there's an objection:

First, the House and Senate meet together in the House chamber at 1 pm on January 9th, with the President of the Senate, Vice President Dick Cheney, as the presiding officer. There is a formal procedure for opening and counting the votes of the electors. At the end, the totals are delivered to the President of the Senate who:

     “shall thereupon announce the state of the vote, which  announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United  States, and, together with a list of the votes, be entered on the Journals of the two Houses.”

But wait, it’s not a done deal quite yet. The President of the Senate then has to ask if there any objections. Any objections have to be submitted in writing, signed by at least one member of the House and one member of the Senate.

Now comes the fun part. If there is at least one valid objection, then the Senators has to go back to their own chamber. Each house of Congress then holds its own separate debate on the objection. The law says that each Member of each house may talk for up to five minutes, and that a given Member can only speak once. But not all Members will have a chance to speak: there is a two-hour time limit on this debate, at the end of which the presiding officer has to call for a vote.  There is no language about how the time is to be allocated.

There is only a small window of opportunity for actually throwing out the votes from a state. There is a good deal of language in the law about how to deal with situations in which there are competing sets of electoral votes from a given state.

And there is specific language about rejecting the votes of a single state whose electoral votes were certified through the normal process. To reject a single state’s votes, both houses of Congress have to agree “that such vote or votes have not been so regularly given by electors whose appointment has been so certified.”  I assume that any objection would include questioning the regularity of the process by which the electors in Ohio were chosen, given the number and type of irregularities that have been discovered thus far in that state.

(Because the law calls for both houses to concur, and says nothing about dealing with differing votes, I assume that if only one house voted to reject, the objection to accepting the votes would fail.)

After both houses have voted, the Members reassemble in the House chamber, and the vote from each house is reported. There is almost no possibility for any further debate at this point. The law provides that : “no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw.”

III. The U.S.Code, Chapter 1

And for you hard-core political junkies, here’s the text of the sections of Title 3, Chapter 1 of the U.S. Code. (Sections 15-18 are first; sections 5 and 6, which are referenced in section 15, are at the bottom). I have highlighted sections that are referred to above.

TITLE 3 - THE PRESIDENT

    CHAPTER 1 - PRESIDENTIAL ELECTIONS AND VACANCIES

    Sec. 15. Counting electoral votes in Congress

      Congress shall be in session on the sixth day of January succeeding every meeting of the electors.  The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o'clock in the afternoon on that day, and the President of the Senate shall be their presiding officer.  Two tellers shall be previously appointed on the part of the Senate and two on the part of the House of Representatives, to whom shall be handed, as they are opened by the President of the Senate, all the certificates and papers purporting to be certificates of the electoral votes, which certificates and papers shall be opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A; and said tellers, having then read the same in the presence and hearing of the two Houses, shall make a list of the votes as they shall appear from the said certificates; and the votes having been ascertained and counted according to the rules in this subchapter provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall be deemed a sufficient declaration of the persons, if any, elected President and Vice President of the United States, and, together with a list of the votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any.  Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Memberof the House of Representatives before the same shall be received.

When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.  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 who are shown by the determination mentioned in section 5 of this title to have been appointed, if the determination in said section provided for shall have been made, or by such successors or substitutes, in case of a vacancy in the board of electors so ascertained, as have been appointed to fill such vacancy in the mode provided by the laws of the State; 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; 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.

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.  When the two Houses have voted, they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted.  No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of.

-SOURCE-
(June 25, 1948, ch. 644, 62 Stat. 675.)

                        COUNTING OF ELECTORAL VOTES

1996 - Pub. L. 104-296, Sec. 2, Oct. 11, 1996, 110 Stat. 3558, provided that: ''The meeting of the Senate and House of Representatives to be held in January 1997 pursuant to section 15 of title 3, United States Code, to count the electoral votes for President and Vice President cast by the electors in December 1996 shall be held on January 9, 1997 (rather than on the date specified in the first sentence of that section).''1989 - Pub. L. 100-646, Nov. 9, 1988, 102 Stat. 3341, provided:

''That in carrying out the procedure set forth in section 15 of title, 3, United States Code, for 1989, 'the fourth day of January' shall be substituted for 'the sixth day of January' in the first sentence of such section.''

1985 - Pub. L. 98-456, Oct. 9, 1984, 98 Stat. 1748, provided:
''That, in carrying out the procedure set forth in section 15 of title 3, United States Code, for 1985, 'the seventh day of January' shall be substituted for 'the sixth day of January' in the first sentence of such section.''

3 USC Sec. 16 01/06/03

TITLE 3 - THE PRESIDENT
CHAPTER 1 - PRESIDENTIAL ELECTIONS AND VACANCIES

Sec. 16. Same; seats for officers and Members of two Houses in joint meeting

At such joint meeting of the two Houses seats shall be provided as follows: For the President of the Senate, the Speaker's chair; for the Speaker, immediately upon his left; the Senators, in the body of the Hall upon the right of the presiding officer; for the Representatives, in the body of the Hall not provided for the Senators; for the tellers, Secretary of the Senate, and Clerk of the House of Representatives, at the Clerk's desk; for the other officers of the two Houses, in front of the Clerk's desk and upon each side of the Speaker's platform.  Such joint meeting shall not be dissolved until the count of electoral votes shall be completed and the result declared; and no recess shall be taken unless a question shall have arisen in regard to counting any such votes, or otherwise under this subchapter, in which case it shall be competent for either House, acting separately, in the manner hereinbefore provided, to direct a recess of such House not beyond the next calendar day, Sunday excepted, at the hour of 10 o'clock in the forenoon.  But if the counting of the electoral votes and the declaration of the result shall not have been completed before the fifth calendar day next after such first meeting of the two Houses, no further or other recess shall be taken by either House.

-SOURCE-
(June 25, 1948, ch. 644, 62 Stat. 676.) 3 USC Sec. 17 01/06/03

Sec. 17. Same; limit of debate in each House

When the two Houses separate to decide upon an objection that may have been made to the counting of any electoral vote or votes from any State, or other question arising in the matter, each Senatorand Representative may speak to such objection or question five minutes, and not more than once; but after such debate shall have lasted two hours it shall be the duty of the presiding officer of each House to put the main question without further debate.

-SOURCE-
(June 25, 1948, ch. 644, 62 Stat. 676.) 3 USC Sec. 18 01/06/03

Sec. 18. Same; parliamentary procedure at joint meeting

While the two Houses shall be in meeting as provided in this chapter, the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw.

-SOURCE-

(June 25, 1948, ch. 644, 62 Stat. 676; Sept. 3, 1954, ch. 1263,

Sec. 3, 68 Stat. 1227.)

                                 AMENDMENTS

1954 - Act Sept. 3, 1954, substituted ''chapter'' for''subchapter''.3 USC Sec. 5  01/06/03

Sec. 5. Determination of controversy as to appointment of electors

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

-SOURCE-
(June 25, 1948, ch. 644, 62 Stat. 673.)

                   SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 15 of this title.

3 USC Sec. 6  01/06/03

Sec. 6. Credentials of electors; transmission to Archivist of the

United States and to Congress; public inspection

It shall be the duty of the executive of each State, as soon as practicable after the conclusion of the appointment of the electors in such State by the final ascertainment, under and in pursuance of the laws of such State providing for such ascertainment, to communicate by registered mail under the seal of the State to the Archivist of the United States a certificate of such ascertainment of the electors appointed, setting forth the names of such electors and the canvass or other ascertainment under the laws of such State of the number of votes given or cast for each person for whose appointment any and all votes have been given or cast; and it shall also thereupon be the duty of the executive of each State to deliver to the electors of such State, on or before the day on which they are required by section 7 of this title to meet, six duplicate-originals of the same certificate under the seal of the State; and if there shall have been any final determination in a State in the manner provided for by law of a controversy or contest concerning the appointment of all or any of the electors of such State, it shall be the duty of the executive of such State, as soon as practicable after such determination, to communicate under the seal of the State to the Archivist of the United States a certificate of such determination in form and manner as the same shall have been made; and the certificate or certificates so received by the Archivist of the United States shall be preserved by him for one year and shall be a part of the public records of his office and shall be open to public inspection; and the Archivist of the United States at the first meeting of Congress thereafter shall transmit to the two Houses of Congress copies in full of each and every such certificate so received at the National Archives and Records Administration.

-SOURCE-

(June 25, 1948, ch. 644, 62 Stat. 673; Oct. 31, 1951, ch. 655, Sec. 6, 65 Stat. 711; Pub. L. 98-497, title I, Sec. 107(e)(1), (2)(A),Oct. 19, 1984, 98 Stat. 2291.)

AMENDMENTS

1984 - Pub. L. 98-497 substituted ''Archivist of the United States'' for ''Administrator of General Services'' in section catchline and wherever appearing in text and ''National Archives and Records Administration'' for ''General Services Administration''.

1951 - Act Oct. 31, 1951, substituted ''Administrator of General Services'' for ''Secretary of State'' in section catchline and several places in text, and for ''Secretary of State of the United States'' in one place, and ''General Services Administration'' for ''State Department''.

                      EFFECTIVE DATE OF 1984 AMENDMENT

Amendment by Pub. L. 98-497 effective Apr. 1, 1985, see section 301 of Pub. L. 98-497, set out as a note under section 2102 of Title 44, Public Printing and Documents.

                   TERMINATION OF REPORTING REQUIREMENTS

For termination, effective May 15, 2000, of provisions of law requiring submittal to Congress of any annual, semiannual, or other regular periodic report listed in House Document No. 103-7 (in which the requirement under this section that the Archivist transmit to Congress copies of certificates of ascertainment is listed as a report on page 179), see section 3003 of Pub. L. 104-66, as amended, set out as a note under section 1113 of Title 31, Money and Finance.

                   SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 15 of this title.