Prior to the drama of January 6, 2021, many Americans likely didn’t give presidential elections much thought beyond Election Day. Now, however, the certification of electors leads the news cycle – and it has everyone’s attention. Today, the joint session of the new 119th Congress will meet to count and certify the electors and confirm Donald Trump as the 47th president. But what, exactly, does that mean – and how does it work?
Republic, Not Democracy
The easiest question to answer behind the Electoral College – though, apparently, still very difficult for many Americans to grasp – is “why.” Why is there this other process beyond the popular vote that determines who holds the highest office in the land? Because the US is not a democracy. It’s a republic of 50 individual democracies (plus Washington, DC, thanks to the 23rd Amendment to the Constitution). So, don’t think of November 5, 2024 as one big national election so much as 51 smaller elections coordinated to fill a national office.
With the exception of Maine and Nebraska, which split their Electoral College votes based on districts, the rest of the states and DC award all of their electors to whichever candidate wins the popular vote in the state election. So even if the winning candidate barely squeaks by with a razor-thin margin, he or she gets all electors. That’s how some presidents can win the Electoral College while coming up short in the nationwide popular vote count.
Election Day is the first Tuesday after the first Monday in November – that was November 5 this year – but that’s just the beginning of the mechanical process that takes individual votes and translates them into a president and vice president. After that, each state prepares certificates of ascertainment. These name the electors chosen by the winning candidate and provide the results of votes cast for each slate of electors. This must be done at least six days before the meeting of the electors, who will sometime after that meet and vote in their states on which candidates to support.
These vote results and the certificates of ascertainment must be received by the president of the US Senate and the archivist no later than the fourth Wednesday in December. On or before January 3, they’re sent to Congress. Finally, on January 6, Congress meets in a joint session and counts them.
January 6 and the Final Count
During the joint session on January 6, the vice president, as president of the Senate, presides over the count and announces the results of the Electoral College vote. After the count, assuming there’s a winner (and there almost always is), the VP declares who has been elected president and vice president of the United States. This certification is when the election process is finally complete. All that remains is for the two soon-to-be occupants of the White House to take the oath of office and officially become the president and vice president at noon on January 20, Inauguration Day.
At least, that’s how the process is supposed to work. Most of the time, it’s exactly how it goes. But, sometimes, things go a little sideways.
In the event that no presidential candidate wins 270 electoral votes, the House of Representatives decides the winner, choosing from the three candidates who received the most electoral votes. This vote would be taken by state, with each state having one vote. If no vice-presidential candidate wins at least 270 electoral votes, the Senate elects a VP from the top two candidates by majority vote, with each senator getting one vote.
This hasn’t happened since 1824, when no candidate managed the 131 electoral votes necessary to win at that time. Andrew Jackson won 99 electoral votes, John Quincy Adams won 84, William H. Crawford took 43, and Henry Clay got 37. Clay, who was the odd man out as the House only selects from the top three, used his influence to help John Quincy Adams. On February 9, 1825, the House elected Adams president, and Adams appointed Clay to be his secretary of state.
Challenging Certification
In 2021, however, things went awry in a different way entirely. After the 2020 election, Joe Biden won 306 electors to Donald Trump’s 232. Since the winning number these days is 270, Biden clearly won that one – assuming, of course, that one doesn’t believe the election was stolen through voter fraud. That is precisely what many Trump supporters – including some lawmakers in both chambers of Congress – did believe.
In accordance with the Electoral Count Act of 1887, an objection to a state’s electoral votes can be made to the president of the Senate (the VP) during the counting on January 6. The objection must be raised by both a senator and a member of the house of Representatives. The law has since been updated so that objections must be made in writing and be signed by one-fifth of the senators and one-fifth of the representatives.
But in 2021, the process remained under the old law – and some Republicans used it to challenge the certification of Joe Biden’s electors. Once such opposition has successfully been raised, the two chambers must split and vote separately on whether to reject the challenged votes. This process was interrupted in 2021 by the riot at the Capitol. When the dust settled, so to speak, those lawmakers who had initially challenged the certification withdrew their opposition and voted to confirm.
But 2021 was not the first time the certification of a president had been challenged. In 2005, Ohio’s 20 electoral votes were challenged. The Senate and the House, however, didn’t agree to reject the votes, and so they were counted, and President George W. Bush and VP Dick Cheney were certified. In both 2001 and 2017, members of the House attempted to trigger this process, but without a member of the Senate joining in either case, the VPs, Al Gore in 2001 and Joe Biden in 2017, gaveled down the opposition and finished the certification. Despite the drama and tension of the 2024 election, no such interruptions are expected this year.
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