For State Officials
Responsibilities of the States in the Presidential Election
The Constitution of the United States and Federal law place certain Presidential election responsibilities on State executives.
To assist the states in carrying out these responsibilities, the Governors of each State will receive a package from the Archivist of the United States, David S. Ferriero.
The package will include:
If you do not receive your package, please contact the Office of the Federal Register
The National Archives and Records Administration’s Office of the Federal Register prepared these instructions under the authority of 3 U.S.C. 6, 11, 12, and 13 to assist the States in performing their duties. Under the 23rd Amendment of the Constitution, the District of Columbia is allocated 3 electors and treated like a state for purposes of the Electoral College. For this reason, in the following discussion, the word “state” also refers to the District of Columbia and the word “governor” also refers to the Mayor of the District of Columbia.
Key Electoral College Dates and Events
View all the 2012 Presidential Election Key Dates
|By November 6, 2012
|| Hold general election to appoint Electors. |
|| Governors’ legal counsel, Secretaries of State, and other State election officials.
|As soon as possible after the November 6, 2012 election results
||Prepare and distribute the Certificate of Ascertainment. |
||Governor of each State, Secretaries of State, and other State election officials.
|By December 10, 2012|
||Resolve any issues regarding election recounts, controversies, or contests. |
||Governors’ legal counsel, Secretaries of State, State courts.
|By December 26, 2012|
||Prepare and distribute the Certificate of Vote. |
||Electors of each State, Governor of each State, and Secretaries of State.
|January 6, 2013|
|| On December 28, 2012, President Obama signed Pub.L. 112-228, as passed by both houses of Congress, moving the day of the vote count
from January 6, 2013 (a Sunday) to January 4, 2013.|
|| Count the electoral votes.|
Electoral College Instructions
1. Appoint Electors
The United States Constitution and Federal law do not prescribe the method of appointment other than requiring that electors must be appointed on the Tuesday after the first Monday in November (November 6, 2012). In most States, the political parties nominate slates of electors at State conventions or central committee meetings. Then the citizens of each State appoint the electors by popular vote in the state-wide general election. However, State laws on the appointment of electors may vary.
Under the Constitution, State legislatures have broad powers to direct the process for selecting electors, with one exception regarding the qualifications of electors. Article II, section 1, clause 2 provides that “no Senator, Representative, or Person holding an Office of Trust or Profit under the United States” may be appointed as an elector. It is not settled as to whether this restriction extends to all Federal officials regardless of their level of authority or the capacity in which they serve, but we advise the States that the restriction could disqualify any person who holds a Federal government job from serving as an elector.
2. Prepare the Certificate of Ascertainment
After the general election, the Governor of each State prepares seven original Certificates of Ascertainment listing the persons appointed as Electors. Federal law does not govern the general appearance of the Certificate of Ascertainment. The format conforms to the law or custom of the submitting State. Federal law requires that the Certificates of Ascertainment be prepared and authenticated in the following manner:
- Each Certificate must list the names of the electors chosen by the voters and the number of votes received.
- Each Certificate must list the names of all other candidates for elector and the number of votes received.
- Each Certificate must be signed by the Governor and carry the seal of the State.
3. Distribute the Certificate of Ascertainment
One of the seven original Certificates of Ascertainment, along with two certified copies (or two additional
originals) must be sent by registered mail to:
David S. Ferriero
Archivist of the United States
National Archives and Records Administration
c/o Office of the Federal Register (F)
8601 Adelphi Road
College Park, MD 20740-6001
The original Certificate and two certified copies (or duplicate originals) should be sent to the Archivist as soon as possible after the November 6 election results are finalized. At the very latest, they must be received by the Electors on the statutory deadline of December 17, 2012 and submitted to the Archivist no later than December 26, 2012.
The Legal Staff of the Office of the Federal Register will examine the Certificates for legal sufficiency and send the certified copies or duplicate originals to the U.S. House and Senate. The other six originals must be retained by the State for the meeting of the State’s Electors on December 17, 2012. Those six originals will be attached to the Certificates of Vote executed at the Electoral College meeting.
4. Hold the Meeting of Electors
On the first Monday after the second Wednesday in December (December 17, 2012), the electors meet in their respective States. Federal law does not permit the States to choose an alternate date for the meeting of Electors—it must be held on December 17, 2012. The State legislature may designate where in the State the meeting will take place, usually in the State capital. At this meeting, the Electors cast their votes for President and Vice President.
If any Electors are unable to carry out their duties on the day of the Electoral College meeting, the laws of each State would govern the method for filling vacancies. Any controversy or contest concerning the appointment of Electors must be decided under State law at least six days prior to the meeting of the electors.
- See Title 3, Section 6 of the U.S. Code
There is no Constitutional provision or Federal law requiring Electors to vote in accordance with the popular vote in their States. Some States have such requirements.
5. Prepare the Certificate of Vote
Federal law does not govern the general appearance of the Certificate of Vote. The format is determined under the law or custom of the submitting State. The Electors must execute six Certificates of Vote. Federal law requires that the Certificates be prepared and authenticated in the following manner:
- The Certificates of Vote must contain two distinct lists, one for President and one for Vice President.
- The Certificates must list all persons who received electoral votes for President and the number of electors who voted for each person.
- The Certificates must list all persons who received votes for Vice President and the number of electors who voted for each person.
- The Certificates do not contain the names of persons who did not receive electoral votes.
- Each of the six Certificates of Vote must be signed by all of the electors.
- One of the six Certificates of Ascertainment provided to the electors by the Governor must be attached to each of the six Certificates of Vote.
- Finally, each of the six pairs of Certificates must be sealed and certified by the electors as containing the list of electoral votes of that State for President and Vice President.
6. Distribute the Paired Certificates of Vote and Certificates of Ascertainment
The six pairs of Certificates must be sent to the designated Federal and State officials as follows:
- One is sent by registered mail to:
The Honorable Joseph R. Biden, Jr.
President of the United States Senate
The United States Senate
Washington, DC 20510
- Two are sent by registered mail to:
David S. Ferriero
Archivist of the United States
National Archives and Records Administration
c/o Office of the Federal Register (NF)
8601 Adelphi Road
College Park, MD 20740-6001
- Two are sent to:
The Secretary of State of each State.
- One of these is held subject to the order of the President of the United States Senate or the Archivist of the
United States in case the electoral votes fail to reach the Senate or the Archivist.
- The other one is to be preserved by the Secretary of State for public inspection for one year.
- One is sent to:
The Chief Judge of the Federal District Court located where the electors meet.
- It is held subject to the order of the President of the United States Senate or the Archivist of the United States in case the electoral votes fail to reach the Senate or the Archivist.
The statutory deadline for the designated Federal and State officials to receive the electoral votes is December 26, 2012. Because of the very short time between the meetings of the Electors in the States on December 17 and the December 26 statutory deadline, followed closely by the counting of electoral votes in Congress on January 6, 2013, it is imperative that the Certificates be mailed as soon as possible. (On December 28, 2012, President Obama signed Pub.L. 112-228, as passed by both houses of Congress, moving the day of the vote count from January 6, 2013 (a Sunday) to January 4, 2013.)
We strongly recommend that the sealed pairs of Certificates be taken to the Post Office on December 17, or no later than the morning of December 18, to minimize delays that could occur during the holiday mail season. Some States may find it useful to alert their local Postmaster to the extraordinarily important nature of the mailing. When the paired Certificates of Vote and Certificates of Ascertainment have been delivered to the designated Federal and State officials, the States’ Electoral College duties are complete.
Prior to the election this year, the Legal Staff of the Office of the Federal Register will telephone Secretaries of State and other election officials to establish contact with the States and assure the smooth operation of the Electoral College process.
For more information on the Electoral College and the election responsibilities of the States and the Archivist of the United States, contact the Office of the Federal Register:
Your Electoral College contacts at the Office of the Federal Register are:
- Amy Bunk, Director of Legal Affairs and Policy
- Miriam Vincent, Staff Attorney
Responsibilities of the Office of the Federal Register and the National Archives and Records Administration (NARA) in the Presidential Election
The Archivist of the United States is required by law to perform certain functions relating to the Electoral College (3 U.S.C. sections 6, 11, 12, 13). The Archivist has delegated to the Director of the Federal Register the authority to carry out the administration of the electoral college process.
Prior to the General Election
In October of each Presidential election year, the Archivist sends a letter to the Governor of each State and the Mayor of the District of Columbia along with an instruction package prepared by the Office of the Federal Register (OFR) that sets out the States’ responsibilities regarding the Electoral College. The package also includes a quantity of booklets containing applicable Federal Constitutional and statutory provisions regarding presidential elections to be distributed to each elector.
Also in the month prior to the election, the OFR contacts the Assistant Secretary of the Senate and the House Parliamentarian to make arrangements for the delivery of the Electoral College certificates to Congress. And finally, in the month prior to the election, the OFR prepares to receive the Electoral College certificates from the States. The OFR makes special arrangements with the Archivist’s mailroom staff and messenger service to establish procedures for handling the Certificates and transmitting them from the Archives to the OFR.
After the General Election
During the week following the general election, the OFR calls the Governor’s Office in each State and the Mayor’s Office in the District of Columbia to make a personal contact with a person responsible for the Electoral College process. In some States, the Secretary of State is the official designated to administer the Electoral College, but other State officials
may be assigned this responsibility according to State law or custom. The OFR confirms that materials mailed in October have arrived and reviews the States' plans for carrying out their responsibilities.
Receipt of Certificates of Ascertainment
Certificates should begin arriving at NARA shortly after the general election held on November 6, 2012. The Archives makes a record of the Certificates of Ascertainment it receives and transmits them to the OFR’s Legal Affairs and Policy Staff by special delivery. The OFR logs in a record of the Certificates and checks them for facial legal sufficiency. If there are any problems with a Certificate, an OFR attorney calls the contact person in the State to advise them of the defect. The OFR makes copies of the Certificates of Ascertainment available for public inspection and secures the originals.
Receipt of Certificates of Vote
Certificates of Vote should begin arriving at NARA shortly after the State meetings of the electors held on December 17, 2012. Certificates of Vote are recorded on a log sheet when received at the Archivist’s office and at the OFR. Each Certificate is checked for facial legal sufficiency, and if there are any problems with a Certificate, an OFR attorney calls
the contact person in that State and the Assistant Secretary of the Senate to inform them of the problems and offer advice as to a solution. After the Certificates of Vote have been determined to be facially sufficient, the OFR makes copies of them available for public inspection and secures the originals.
Certificates of Ascertainment Transmitted to Congress
The OFR prepares cover letters for the Archivist’s signature to accompany the Certificates of Ascertainment transmitted to Congress. The OFR hand delivers the Certificates and cover letters to the Vice President’s Office in the Senate (the Vice President is the President of the Senate) and the Speaker’s Room on the House side of the Capitol and obtains a receipt. If all the Certificates of Ascertainment are received in a timely fashion, they are sent to Congress in one group. However, late arriving Certificates may also be hand delivered separately to Congress so that transmittal of
the other Certificates is not delayed.
Certificates of Vote Subject to the Call of the President of the Senate
The OFR holds one of the two original Certificates of Vote subject to the call of the President of the Senate in the event that one or more Certificates fail to reach the Senate in a timely manner. If the Archivist does not receive a Certificate of Vote from a State by a week after the Electors meet, the OFR calls that State's contact person to make sure the Certificates were mailed. If the Certificates were not mailed, the OFR advises the State to transmit the Certificates by express mail. If the Certificates were mailed and are overdue in arriving, the OFR calls the Postal Service to request that it trace the package. Finally, if no Certificate of Vote is received from a State by the fourth Wednesday in December after the election, the OFR employs the procedural steps set forth at 3 U.S.C. sections 12 and 13 by securing a duplicate from the Secretary of State of the State or by dispatching a special messenger to obtain the duplicate held by a Federal District judge and hand carrying it to Washington D.C.
After Congress has met in joint session for the official counting of electoral votes, all Certificates of Ascertainment and Certificates of Vote in OFR’s files are combined into one file. Each file contains all Certificates from a State, any cover letter accompanying the Certificates, and any envelopes bearing certifications of Electors’ votes. The files are placed in archival boxes and made available for public inspection at the OFR for one year and then transferred to NARA for permanent retention.
Responsibilities of Congress in the Presidential Election
House and Senate staff come to the Office of the Federal Register (OFR) to inspect the Certificates of Vote in late December. Because the statutory procedure prescribes that the Certificates of Vote sent to the President of the Senate be held under seal until Congress opens and counts them in joint session, the Congress depends on the OFR to ensure the facial legal sufficiency of Certificates. If any State’s Certificate fails to reach the President of the Senate, the President of the Senate calls on OFR to deliver duplicate originals in its possession to complete the set held by Congress. After the 1988 general election, the President of the Senate called for nineteen of the Certificates of Vote held by the OFR. For the 1992 election, the OFR supplied the Congress with two missing Certificates of Vote.
The Congress is scheduled to meet in joint session in the House of Representatives on January 6, 2013 to conduct the official tally of electoral votes. (On December 28, 2012, President Obama signed Pub.L. 112-228, as passed by both houses of Congress, moving the day of the vote count from January 6, 2013 (a Sunday) to January 4, 2013.) The Vice President, as President of the Senate, is the presiding officer. Two tellers are appointed to open, present and record the votes of the States in alphabetical order. The President of the Senate announces the results of the vote and declares which persons, if any, have been elected President and Vice President of the United States. The results are entered into the official journals of the House and Senate. The President of the Senate then calls for objections to be made. If any objections are registered, they must be submitted in writing and be signed by at least one member of the House and Senate. The House and Senate would withdraw to their respective chambers to consider the merits of any objections according the procedure set out under 3 U.S.C. section 15.