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Commentary and editing by John R. Graham, Jr., J.D. and Roy Miller, LL.B.
CHAPTER 10
Presidential Elections; Electoral
College
§ 1. In General; Electoral Certificates § 2. Joint Sessions to Count Electoral Votes § 3. Counting Votes; Objections to Count § 4. Presidential Nominations for Vice President
INDEX TO PRECEDENTS
Certificates ascertaining electors generally, see § 3. transmittal of, to the House, § 1.l Certificates of electoral Votes conflicts relative to, § 3. objections to vote count, § 3. transmittal of, to the House, §§ 1.1 et seq. Joint session to count electoral votes concurrent resolution providing for, § 2. convening of, § 2. division of, to consider objections, § 3. presiding officer for, § 2.
Joint session to count electoral votes —Cont. recesses in connection with, § § 2.2, 2. statutory procedures relative to, § 2. Presidential nominations for Vice President confirmation of, § 4. referral of, to committee, § 4. transmission of, by message, § 4. Tellers to count electoral votes appointment of, in the House, § § 3.1,
appointment of, in the Senate, § 3. substitution for, in the House, § 3.
Ch. 10 § 1 DESCHLER ’S PRECEDENTS
has differed from the result of the popular vote. For example, in the Hayes-Tilden election of 1876, deter- minations by the House and Senate with respect to certain disputed elec- toral votes resulted in the election of Hayes, although Tilden had received a majority of the popular vote. See 3 Hinds’ Precedents §§ 1953–1956.
3. 3 USC § 15. 4. See § 2.4, infra. 5. See § 2.5, infra. 6. 3 USC 15. 7. See § § 3.1–3.4, infra, for appoint- ment of tellers. 8. See § 2.1, infra. 9. See § 2.1, infra.
The electoral vote has generally followed the popular vote because electors came to be chosen merely as representatives of the political parties and because the state leg- islatures adopted a unit-rule sys- tem under which all of a state’s electoral votes are to be cast for the party which wins a plurality of popular votes statewide. The 12th amendment states in part:
The Electors shall meet in their re- spective states, and vote by ballot for President and Vice-President... they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President, and they shall make distinct lists of all persons voted for as Presi- dent, and of all persons voted for as Vice-President, and the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the Presi- dent of the Senate; [t]he President of the Senate shall, in presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted. On the sixth day of January after the electors of the several
states have met to cast votes for President and Vice President, the Congress, in accordance with the provisions of law,(^3 )^ convenes in joint session,(^4 )^ the Senate and House of Representatives meeting in the Hall of the House, to exer- cise its constitutional responsi- bility for counting the electoral vote. At one o’clock in the afternoon on that day, the joint session of the two Houses is called to order by the President of the Senate,(^5 ) the individual designated by stat- ute (^6 )^ to serve as the joint ses- sion’s presiding officer. There- upon, the tellers,(^7 )^ who have pre- viously been appointed on the part of each House,(^8 )^ take their respective places at the Clerk’s desk. According to the alphabet- ical order of the states, all the previously transmitted certificates and papers purporting to be cer- tificates of votes given by the elec- tors are then opened by the Presi- dent of the Senate and handed to the tellers.(^9 )^ Each certificate so received is read by the tellers in
PRESIDENTIAL ELECTIONS ; ELECTORAL COLLEGE Ch. 10 § 1
10. See § 3.6, infra. 11. 3 USC § § 15, 17. 12. See 3 USC § 15. 13. 3 USC § 15. 14. See §§ 4.1–4.3, infra.
the presence and hearing of the two Houses. After the reading of each certificate, the President of the Senate calls for objections, if any. In the event that a written ob- jection should be raised, properly signed by at least one Senator and one Member of the House of Rep- resentatives, and when all objec- tions so made to any vote or paper from a state have been received and read, the joint session divides, the Senate repairing to the Senate Chamber, and all such objections are submitted to and considered by each House meeting in sepa- rate session.(^10 ) Pursuant to the provisions of the U.S. Code, which govern the procedures in both Houses in the event they divide to consider an objection, each Senator and Rep- resentative may speak to such ob- jection for five minutes, and not more than once; and after such debate has lasted two hours, the presiding officer of each House is required to put the main question without further debate.(^11 )^ When the two Houses have voted, they immediately again meet in joint session, and the presiding officer then announces the decision on the objections submitted. Once all objections to any cer- tificate or paper from a state have
been so decided, or immediately following the reading of such cer- tificate or paper when no objec- tions thereto are raised, the tell- ers make a list of the votes as they appear from the certifi- cates.(^12 )^ The result of the count is then delivered to the President of the Senate who thereupon an- nounces the state of the vote. This announcement is deemed by law a sufficient declaration of the per- sons, if any, elected President and Vice President of the United States. The announcement, to- gether with a list of the votes, is then entered in the Journals of the two Houses.(^13 ) In addition to its responsibil- ities in ascertaining and counting the electoral votes cast for Presi- dent and Vice President, the Con- gress has been delegated a further constitutional duty relative to the selection of the Vice President. Pursuant to section 2 of the 25th amendment to the U.S. Constitu- tion, whenever there is a vacancy in the Office of Vice President the President nominates a Vice Presi- dent to take office upon confirma- tion by a majority vote of both Houses.(^14 ) The House and Senate also have important responsibilities
PRESIDENTIAL ELECTIONS ; ELECTORAL COLLEGE Ch. 10 § 2
17. 107 C ONG. REC. 288–91, 87th Cong. 1st Sess. 18. Richard M. Nixon (Calif.). 19. 119 C ONG. R EC. 30, 93d Cong. 1st Sess. For additional recent examples see 115 CONG. R EC. 36, 91st Cong. 1st Sess., Jan. 3, 1969; 111 C ONG.
our Lord 1961, were, ascertained by judgment of the circuit court of the first judicial circuit, State of Hawaii, in proceedings entitled Herman T. F. Lum et al., v. Gavien A. Bush et al. (Civil No. 7029), entered on the 30th day of December A.D. 1960, and that the list of persons voted for and the number of votes cast for each, pursu- ant to said judgment, respectively, is as follows: Republican Party: Gavien A. Bush, 92,295; J. Howard Worrall, 92,295; O. P. Soares, 92,295. Democratic Party: William H. Heen, 92,410; Delbert E. Metzger, 92,410; Jennie Wilson, 92,410. And I further certify that: William H. Heen, Delbert E. Metzger, and Jennie Wilson were appointed elec- tors of President and Vice President of the United States of America, for the State of Hawaii, at said election. Given under my hand and the seal of the State, this 4th day of January, in the year of our Lord 1961. WILLIAM F. Q UINN , Governor of Hawaii.
§ 1.2 Where certificates of elec- toral votes had been received from different slates of elec- tors from a state, and each slate purported to be the duly appointed electors from that state, the Vice President presented the certificates, with all attached papers, in the order in which they had been received. On Jan. 6, 1961,(^17 )^ during pro- ceedings in the joint session of the two Houses incident to the open-
ing of the certificates and ascertaining and counting of the votes of the electors of the several states for President and Vice President, the presiding officer (^18 ) handed to the tellers, in the order in which they had been received, certificates of electoral votes, with all attached papers thereto, from different slates of electors from the State of Hawaii. Without ob- jection, the Chair instructed the tellers to count the votes of those electors named in the certificate of the Governor of Hawaii dated Jan. 4, 1961 (discussed more fully in § 3.5, infra).
§ 2. Joint Sessions to
Count Electoral Votes
Concurrent Resolution Pro- viding for Joint Session
§ 2.1 A concurrent resolution providing for a joint session to count the electoral votes for President and Vice Presi- dent may be originated by the Senate. On Jan. 3, 1973,(^19 )^ Mr. Thomas P. O’Neill, Jr., of Massachusetts,
Ch. 10 § 2 DESCHLER ’S PRECEDENTS
REC. 26, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 C ONG. R EC. 26, 87th Cong. 1st Sess., Jan. 3, 1961.
20. 119 C ONG. R EC. 30, 93d Cong. 1st Sess. For further illustrations see 115 CONG. R EC. 36, 91st Cong. 1st Sess., Jan. 3, 1969; 111 CONG. R EC. 26, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 CONG. R EC. 26, 87th Cong. 1st Sess., Jan. 3, 1961. 1. S. Con. Res. 1.
called up and asked for the imme- diate consideration of a Senate concurrent resolution:
S. C ON. RES. 1 Resolved by the Senate (the House of Representatives concurring), That the two Houses of Congress shall meet in the Hall of the House of Representa- tives on Saturday, the 6th day of Janu- ary 1973, at 1 o’clock postmeridian, pursuant to the requirements of the Constitution and laws relating to the election of President and Vice Presi- dent of the United States, and the President of the Senate shall be their Presiding Officer; that two tellers shall be previously appointed by the Presi- dent of the Senate on the part of the Senate and two by the Speaker 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 pur- porting to be certificates of the elec- toral votes, which certificates and pa- pers 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 in the manner and according to the rules by law provided, the result of the same shall be delivered to the President of the Senate, who shall thereupon an- nounce the state of the vote, which an-
nouncement shall be deemed a suffi- cient 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. The Senate concurrent resolu- tion was agreed to.
Recesses
§ 2.2 The Speaker may be au- thorized to declare a recess in connection with the con- vening of the two Houses in joint session to count the electoral vote for President and Vice President. On Jan. 3, 1973,(^20 )^ the House considered and agreed to a Senate concurrent resolution (^1 )^ providing for the convening on Jan. 6, 1973, of a joint session of the two Houses to count the electoral vote. Mr. Thomas P. O’Neill, Jr., of Massachusetts, then made a unanimous-consent request, as fol- lows: M R. O’N EILL : Mr. Speaker, I ask unanimous consent that on Saturday, January 6, 1973, it may be in order for the Speaker to declare a recess at any time subject to the call of the Chair.
Ch. 10 § 2 DESCHLER ’S PRECEDENTS
electoral votes, see 115 C ONG. R EC. 36, 91st Cong. 1st Sess., Jan. 3, 1969; 111 CONG. REC. 26, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 CONG. REC. 26, 87th Cong. 1st Sess., Jan. 3, 1961.
9. 115 C ONG. R EC. 145, 91st Cong. 1st Sess. See also 111 CONG. REC. 136, 89th Cong. 1st Sess., Jan. 6, 1965. 10. On Jan. 6, 1969, the President of the Senate, Hubert H. Humphrey, (Minn.), who was the incumbent Vice President and the losing candidate for President in the 1968 election, declined to preside over the joint ses- sion to count the electoral votes. On Jan. 6, 1965, the office of the Presi- dent of the Senate was vacant, the former Vice President, Lyndon B. Johnson (Tex.), having ascended to the Presidency upon the death of his predecessor, Nov. 22, 1963. 11. Richard B. Russell (Ga.). 12. 115 C ONG. R EC. 145–47, 169–72, 91st Cong. 1st Sess. 13. 13. S. Con. Res. 1.
constitutional and statutory re- sponsibilities relative to opening the certificates and ascertaining and counting the votes of the elec- tors of the several states for Presi- dent and Vice President.
Presiding Officer
§ 2.5 In the absence of the President of the Senate, the President pro tempore of the Senate presides over the joint session to count the electoral votes for President and Vice President. On Jan. 6, 1969, (9)^ in the ab- sence of the President of the Sen- ate, (10)^ the President pro tempore
of the Senate (11)^ presided over the joint session to count the electoral votes for President and Vice Presi- dent of the United States.
Procedure
§ 2.6 Where the two Houses meet to count the electoral vote, a joint session is con- vened pursuant to a concur- rent resolution of the two Houses which incorporates by reference the applicable provisions of the United States Code; and the proce- dures set forth in those pro- visions are in effect con- stituted as a joint rule of the two Houses for the occasion and govern the procedures in the joint session and in both Houses in the event they divide to consider an objection. On Jan. 6, 1969, (12)^ the two Houses convened in joint session to count the electoral vote. The joint session was convened pursu- ant to a Senate concurrent resolu- tion (13)^ which incorporated the votecounting procedures set forth in 3 USC §§ 15–18. A written ob- jection was made to the count of
PRESIDENTIAL ELECTIONS ; ELECTORAL COLLEGE Ch. 10 § 3
14. 119 C ONG. R EC. 30, 93d Cong. 1st Sess. For further illustrations see 115 CONG. REC. 36, 91st Cong. 1st Sess., Jan. 3, 1969; 111 C ONG. R EC. 26, 89th Cong. 1st Sess., Jan. 4, 1965; and 107 CONG. R EC. 27, 87th Cong. 1st Sess., Jan. 3, 1961. 15. S. Con. Res. 1. 16. Carl Albert (Okla.). 17. 115 C ONG. R EC. 36, 91st Cong. 1st Sess. 18. John W. McCormack (Mass.). 19. 95 CONG. REC. 89, 81st Cong. 1st Sess. 20. Sam Rayburn (Tex.).
North Carolina’s electoral vote. Thereupon, pursuant to the provi- sions of 3 USC §§ 15–18, the joint session divided, the Senate repair- ing to the Senate Chamber, and the objection was submitted to and considered in each House con- vened in separate sessions.
§ 3. Counting Votes; Objec-
tions to Count
House Tellers
§ 3.1 Tellers on the part of the House to count the electoral vote are appointed by the Speaker. On Jan. 3, 1973,(^14 )^ the House had considered and agreed to a Senate concurrent resolution (^15 ) providing for the convening of a joint session of the two Houses to count the electoral votes. The Speaker,(^16 )^ pursuant to the provi- sions of the concurrent resolution, appointed Mr. Wayne L. Hays, of Ohio, and Mr. Samuel L. Devine, of Ohio, as tellers on the part of
the House to count the electoral votes.
§ 3.2 The Speaker has ap- pointed the Chairman and ranking minority member of the Committee on House Ad- ministration as tellers on the part of the House to count the electoral votes. On Jan. 3, 1969,(^17 )^ the Speak- er (^18 )^ appointed as tellers on the part of the House to count the electoral votes Mr. Samuel N. Friedel, of Maryland, and Mr. Glenard P. Lipscomb, of Cali- fornia, who were, respectively, the Chairman and ranking minority member of the Committee on House Administration.
§ 3.3 Where a Member des- ignated as a teller for count- ing the electoral ballots was unavoidably detained, the Speaker designated another Member to take his place. On Jan. 6, 1949,(^19 )^ prior to the announcement of the arrival of the Senate for the meeting of the joint session of the two Houses to count the electoral vote, the Speaker (^20 )^ made an announce- ment to the House:
PRESIDENTIAL ELECTIONS ; ELECTORAL COLLEGE Ch. 10 § 3
waii, dated January 4, 1961, received by the Administrator of General Serv- ices on January 6, 1961, and trans- mitted to the Senate and the House of Representatives on January 6, 1961, being Executive Communication Num- ber 215 of the House of Representa- tives, properly and legally portrays the facts with respect to the electors cho- sen by the people of Hawaii at the elec- tion for President and Vice President held on November 8, 1960. As read from the certificates, William H. Heen, Delbert E. Metzger, and Jennie Wilson were appointed as electors of President and Vice President on November 8, 1960, and did on the first Monday after the second Wednesday of Decem- ber, 1960, cast their votes for John F. Kennedy of Massachusetts for Presi- dent and Lyndon B. Johnson of Texas for Vice President. In order not to delay the further count of the electoral vote here, the Chair, without the intent of estab- lishing a precedent, suggests that the electors named in the certificate of the Governor of Hawaii dated January 4, 1961, be considered as the lawful elec- tors from the State of Hawaii. If there be no objection in this joint convention, the Chair will instruct the tellers—and he now does—to count the votes of those electors named in the certificate of the Governor of Hawaii dated January 4, 1961—those votes having been cast for John F. Kennedy, of Massachusetts, for President and Lyndon B. Johnson, of Texas, for Vice President. Without objection the tellers will ac- cordingly count the votes of those elec- tors named in the certificate of the Governor of Hawaii dated January 4,
There was no objection. The tellers then proceeded to read, count and announce the electoral votes of the remaining States in alphabetical order. Parliamentarian’s Note: A re- count of ballots in Hawaii, which was concluded after the Governor of that state had certified the elec- tion of the Republican slate of electors, threw that state into the Democratic column; the Governor then sent a second communication to the Administrator of General Services which certified that the Democratic slate of electors had been lawfully appointed. Both slates of electors met on the day prescribed by law, cast their votes, and submitted them to the President of the Senate pursuant to 3 USC § 11. When the two Houses met in joint session to count the electoral votes, the votes of the electors were presented to the tellers by the Vice President, and, by unanimous consent, the Vice President directed the tellers to accept and count the lawfully appointed slate.
Objections
§ 3.6 A formal objection was made to the counting of the electoral vote of a state, and the House and Senate di- vided to separately consider the objection before pro- ceeding with the counting.
Ch. 10 § 3 DESCHLER ’S PRECEDENTS
6. 115 C ONG. R EC. 145, 146, 91st Cong. 1st Sess. For further discussion and excerpts from the debate, see § § 3.7, 3.8, infra. 7. Richard B. Russell (Ga.). 8. Senator Carl T. Curtis (Neb.) and Senator B. Everett Jordan (N.C.) on the part of the Senate; Mr. Samuel N. Friedel (Md.) and Mr. Glenard P. Lipscomb (Calif.) on the part of the House. 9. 115 C ONG. R EC. 146, 91st Cong. 1st Sess., Jan. 6, 1969. 10. 3 USC § 15.
On Jan. 6, 1969,(^6 )^ the President pro tempore of the Senate (^7 ) called to order a joint session of the House and Senate for the pur- pose of counting the electoral votes for President and Vice Presi- dent. When the tellers appointed on the part of the two Houses (^8 ) had taken their places at the Clerk’s desk, the President pro tempore handed them the certifi- cates of the electors and the tell- ers then read, counted, and an- nounced the electoral votes of the states in alphabetical order. The vote of North Carolina was stated to be 12 for Richard M. Nixon and Spiro T. Agnew for President and Vice President respectively and one for George C. Wallace and Curtis E. LeMay for President and Vice President respectively. Mr. James G. O’Hara, of Michi- gan, thereupon rose and sent to the Clerk’s desk a written objec- tion signed by himself and Ed- mund S. Muskie, the Senator from Maine, protesting the counting of
the vote of North Carolina as read. The President pro tempore directed the Clerk of the House to read the objection, which stat- ed: (^9 ) We object to the votes from the State of North Carolina for George C. Wal- lace for President and for Curtis E. LeMay for Vice President on the ground that they were not regularly given in that the plurality of votes of the people of North Carolina were cast for Richard M. Nixon for President and for Spiro T. Agnew for Vice President and the State thereby appointed thir- teen electors to vote for Richard M. Nixon for President and for Spiro T. Agnew for Vice President and ap- pointed no electors to vote for any other persons. Therefore, no electoral vote of North Carolina should be counted for George C. Wallace for President or for Curtis E. LeMay for Vice President. J AMES G. O’H ARA, M.C. EDMUND S. M USKIE , U.S.S. Following the President pro tempore’s finding that the objec- tion complied with the law (^10 )^ and his subsequent inquiry as to whether there were any further objections to the certificates from the State of North Carolina, the two Houses separated to consider the objection, the Senate with- drawing to the Senate Chamber. The legal basis for the objection was contained in 3 USC § 15, which provided in relevant part:
Ch. 10 § 3 DESCHLER ’S PRECEDENTS
16. See the remarks of Mr. William M. McCulloch (Ohio), id. at p. 148; Mr. Richard H. Poff (Va.), id. at p. 158; Senator Ralph W. Yarborough (Tex.), id. at p. 217; Senator Robert C. Byrd (W. Va.), id. at p. 245. 17. Relevant provisions are art. II, § 1, clause 3; and the 12th amendment. 18. See remarks of Mr. John B. Ander- son (Ill.), 115 C ONG. REC. 151, 91st Cong. 1st Sess., Jan. 6, 1969; Mr. Bob Eckhardt (Tex.), id. at p. 164; Senator Curtis, id. at pp. 219, 220; Senator Herman E. Talmadge (Ga.), id. at p. 223. 1. See remarks of Mr. Alton A. Lennon (N.C.), id. at pp. 149, 150. The Su- preme Court in Ray v Blair , 343 U.S. 214 (1952), upheld the constitu- tionality of state laws requiring an elector to pledge to support the nominee of his political party.
[A]s I understand it, the Constitu- tion, as interpreted by the debates in the Constitutional Convention, clearly makes an elector a free agent. How- ever, from the beginning of the coun- try’s history, political parties devel- oped, and the political parties arranged for slates of electors assigned to their presidential and vice-presidential can- didates. That political party slate of candidates has always been regarded, with but five other exceptions, as bind- ing upon those who are electors on that slate. So I argue that in the light of that tradition, when an elector chooses to go on a party slate, he is indicating his choice for President. I say, secondly, that in the case of North Carolina and this statute, which is found also in 34 other States, the fact that only the presidential and vice-presidential names appear on the ballot is confirmation of this tradition; that when an elector accepts a place on a slate under these circumstances, in the light of this tradition, he knows that to the public at large he is saying, by his action, ‘‘I am for Nixon for President.’’ He is saying implicitly, in my judgment, ‘‘If I am elected an elec- tor under these circumstances, I will vote for Richard Nixon for President.’’ I believe that is the tradition. I be- lieve that this undergirds the responsi- bility of an elector; and once he has set that train of understanding in motion, he cannot, after election day, when it is too late for the voters to respond to any change of mind on his part, say, ‘‘I changed my mind, and I am going to vote for somebody else.’’ It is in the na- ture of estoppel. Those opposed to the objection argued that the electors were
‘‘free agents’’ (^16 )^ under the Con- stitution,(^17 )^ permitted to vote for whomever they pleased. According to such view, Congress, under the Constitution and 3 USC § 15, ex- ercised only a ministerial function in counting the electoral ballots, and such ballots could be dis- counted only if the certificates were not in regular form or were not authentic.(^18 ) It was also noted that North Carolina had not adopted a law, as had a majority of states, re- quiring the electors to pledge to support their party’s nominee; (1) this raised, in the view of some, an implication that North Caro- lina did not intend its electors to
PRESIDENTIAL ELECTIONS ; ELECTORAL COLLEGE Ch. 10 § 3
2. Id. at p. 213. 3. See, for example, the remarks of Mr. Hamilton Fish, Jr. (N.Y.), id. at p. 168. Among those Members and Sen- ators who favored a constitutional amendment to revise the electoral system were Mr. Hale Boggs (La.), id. at p. 151; Mr. Emanuel Celler (N.Y.), id. at p. 149; Mr. Phillip Bur- ton (Calif.), id. at p. 160; Mr. Charles A. Vanik (Ohio), id. at p. 168; Senator Karl E. Mundt (S.D.), id. at p. 216; Senator Birch Bayh (Ind.), id. at p. 218; Senator Harry F. Byrd, Jr. (Va.), id. at p. 221; and Senator Robert C. Byrd (W. Va.), id.
be bound to support particular party nominees. Senator Edward M. Brooke, of Massachusetts, made the following remarks: (2)
In a system of constitutional govern- ment matters of procedure often be- come vital issues of substance. I sub- mit that such a case is now before us. There are strong constitutional grounds for the authority of a State to bind its electors to vote as they are pledged. If a State has so bound its electors, I would contend that the Con- gress can properly act to see that the State’s legal requirements are fulfilled. This would be a reasonable construc- tion of the 1887 statute which provides that Congress can reject an elector’s vote which has not been regularly given. But it is my considered opinion that, unless the State chooses to bind its electors, Congress cannot do so after the fact. Among the many serious implica- tions of this situation, one lesson in particular stands out: No official should ever be granted discretionary authority unless the peo- ple clearly understand that, under some circumstances, he may actually use it. And if such authority, once granted, is deemed excessive or un- wise, the people should explicitly and promptly rescind it. As I understand the relevant con- stitutional guidelines, the power to remedy this particular problem lies with the people of North Carolina act- ing through their representative insti- tutions at the State level....
In addition, however, there is a na- tional interest in removing so critical a loophole in our constitutional system. If the electoral college is to remain an element in our political life, surely we should move to design a constitutional amendment which, once and for all, binds electors to vote for the can- didates to whom they are pledged. I hasten to add that this possible change in our electoral system will certainly not suffice. Indeed, one of the para- mount tasks of this Congress will be to examine the full range of constitu- tional proposals to create a fair and se- cure procedure for presidential elec- tions. In addition to the views stated above by Senator Brooke, several of those speaking to the objection expressed support for a constitu- tional amendment to reform the electoral system, a remedy which, it was argued, would be preferable to ‘‘piecemeal’’ changes to be achieved under present law. (3)
PRESIDENTIAL ELECTIONS ; ELECTORAL COLLEGE Ch. 10 § 3
8. 115 C ONG. R EC. 210, 91st Cong. 1st Sess. 9. According to Minority Leader Ever- ett McK. Dirksen (Ill.), this was also the first time the Senate had oper- ated under the five-minute rule. Id. at p. 223. 10. Id. at p. 211. 11. Id. at p. 223.
In the opinion of the Chair the main question is the objection filed by the gentleman from Michigan (Mr. O’Hara) and the Senator from Maine, Senator Muskie. The Chair is of the opinion that the law plainly governs the situation; that the Chair must put the main question and that the motion to table is not in order. Accordingly, the Chair sustains the point of order. The question on agreeing to the objection was taken; the objection being rejected—yeas 170, nays 228, not voting 32, not sworn 4. A motion to reconsider was laid on the table. A similar situation arose in the Senate, during proceedings relat- ing to the objection to the North Carolina vote. The Senate had been called to order by President pro tempore Richard B. Russell, of Georgia, who then directed the Clerk to read the objection, as fol- lows: (^8 )
We object to the votes from the State of North Carolina for George C. Wal- lace for President and for Curtis E. LeMay for Vice President on the ground that they were not regularly given in that the plurality of votes of the people of North Carolina were cast for Richard M. Nixon for President and for Spiro T. Agnew for Vice President and the State thereby appointed 13 electors to vote for Richard M. Nixon
for President and for Spiro T. Agnew for Vice President and appointed no electors to vote for any other persons. Therefore, no electoral vote of North Carolina should be counted for George C. Wallace for President or for Curtis E. LeMay for Vice-President. Following a statement by the President pro tempore that this was an unusual parliamentary sit- uation in that it was the first time an objection to an electoral vote had been filed,(^9 )^ and a reading by the Clerk of the provisions of 3 USC § 17, the Senate agreed to a unanimous-consent request by Ed- mund S. Muskie,(^10 )^ the Senator from Maine, that the time be di- vided equally between proponents and opponents of the objection, with time for the proponents to be allotted under the direction of the Majority Leader, Michael J. Mans- field, of Montana, and time for the opponents to be allotted under the direction of Senator Dirksen. De- bate on the objection then pro- ceeded. During the debate on the objec- tion, Edward M. Kennedy, the Senator from Massachusetts, in- quired as to whether a motion to lay the objection on the table would be in order: (^11 )
Ch. 10 § 3 DESCHLER ’S PRECEDENTS
12. Id. at p. 246. 13. See § 3.6, supra. 14. 3 USC § 17. 15. 115 C ONG. R EC. 210, 91st Cong. 1st Sess., Jan. 6, 1969.
MR. KENNEDY : Mr. President, may I propound a parliamentary inquiry whether the motion to table is in order or is not in order? THE P RESIDENT P RO T EMPORE: The Chair would rule that it is not in order. The statute under which we are now proceeding states the main ques- tion shall be put. Let the Chair read the last clause of section 17 of title 3: 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. At the conclusion of the two hours of debate, the question on agreeing to the objection was taken; and the objection was re- jected (yeas 33 and nays 58). A motion to reconsider was laid on the table.(^12 )^ Subsequently, at the resumption of the joint session, the Presiding Officer directed the tellers to announce and record the electoral votes of North Carolina as submitted.
§ 3.8 During consideration of an objection to the electoral vote count of a state, unani- mous consent was sought for purposes of modifying the procedures prescribed by statute for consideration of such objections; after discus- sion and rejection of such re- quest, a subsequent unani- mous-consent request was
agreed to which qualified the terms of the statute. During proceedings arising from an objection to the count of elec- toral votes of North Carolina,(^13 ) the following statutory provi- sion (^14 )^ was read in the Senate: (^15 ) When the two Houses separate to de- cide upon an objection that may have been made to the counting of any elec- toral vote or votes from any State, or other question arising in the matter, each Senator and 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 pre- siding officer of each House to put the main question without further debate. Senator Edmund S. Muskie, of Maine, then made the following unanimous-consent request:
... I ask unanimous consent that debate on objections to the electoral vote of North Carolina for George C. Wallace and Curtis LeMay shall be limited to 2 hours, as provided by law in section 17, title 3, United States Code, and that the time be equally di- vided and controlled by the majority leader and the minority leader. Discussion ensued as to the ef- fect of the request and the appro- priateness of adopting procedures that, in the view of some Sen-
