Who Counts the Returns from the Presidential Electors and What Counts in the Denominator? Evidence From the First Century of the Union

Abstract

In order to be elected president by the Electoral College a candidate must receive the electoral votes of a majority of the electors appointed. Thus, two numbers must be counted: • Electoral votes cast for each candidate– the numerator. • Electors appointed in total – the denominator. We are now becoming quite familiar with the following constitutional text: The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted … Surely, it would be a good idea to have the same person(s) or body counting the electoral votes also count the number of electors appointed. But, the constitutional text just quoted is silent about who counts the number of electors appointed. This Note reviews evidence from 1789 through 1873 and concludes that Congress and the Presidents of the Senate established a super precedent that Congress rather than the President of the Senate has the upper hand in the counting of the electoral votes and the number of electors appointed. In 1877 Congress enacted this super precedent into law in the Electoral Count Act of 1877, which applied to that election only. Ten years later Congress enacted this super precedent into permanent law in the Electoral Count Act of 1887, now codified as 3 U.S.C. § 15. After reviewing this history we turn to the generally sloppy job Congress did between 1789 and 1873 counting the number of electors appointed. This serves as the grounds for recommending that 3 U.S.C. § 15 be amended so that it is clear whether an objection is being made to an elector’s appointment or how she cast her electoral votes.