Roles and Responsibilities in the Electoral College Process
The term “State” includes the District of Columbia, and the term “Executive” includes State Governors and the Mayor of the District of Columbia.
The U.S. Constitution and Federal law place certain Presidential election responsibilities on State executives and the electors for President and Vice President.
The Constitution and Federal law generally do not prescribe the method of appointment, but there are some requirements. States are required to appoint electors in accordance with the laws of the State enacted prior to Election Day. Electors must be appointed on the Tuesday after the first Monday in November (Election Day*).
*States that appoint electors by popular vote (currently all) may include a modified voting period necessitated by force majeure events that are extraordinary and catastrophic as part of ‘election day’.
In most States, the political parties nominate slates of electors at State conventions or central committee meetings. Then the voters of each State choose the electors by voting for their preferred candidates in the state-wide general election. While State laws on the appointment of electors may vary, in general the slate of electors that wins the popular vote is appointed by the State's Executive.
Under the Constitution and Federal law, State legislatures have broad powers to direct the process for selecting electors, as long as that process is in place before Election Day, with one exception regarding the qualifications of electors. Article II, section 1, clause 2 of the Constitution provides that “no Senator, Representative, or Person holding an Office of Trust or Profit under the United States” may be appointed as an elector.
After the general election, the Executive of each State prepares seven (7) original Certificates of Ascertainment listing the persons appointed as electors. The Executive is required to issue a Certificate no later than 6 days before the electors meet. Federal law does not govern the general appearance of the Certificate of Ascertainment, so the format can vary from State to State. However, Federal law requires that each Certificate of Ascertainment must:
- list the names of the electors chosen by the voters and the number of votes received.
- list the names of all other candidates for elector and the number of votes received.
- be signed by the Executive and carry the seal of the State.
- contain at least one security feature, as determined by the State, for purposes of verifying the authenticity of the certificate.
Note: Federal law prescribes an expedited procedure for resolving disputes before this deadline (see 3 U.S.C. §5).
Distribute the Certificate of Ascertainment
Each State must send one Certificate of Ascertainment to the Archivist of the United States at OFR immediately after the general election results are finalized.
Each State must retain the other six originals and provide them to the electors for the State’s meeting of the electors.
On the first Tuesday after the second Wednesday in December, the electors meet in their respective States. The State legislature designates 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, each State appoints substitute electors following its own laws and procedures.
The meeting location and all procedures (including for appointing substitute electors) must be in place before election day.
There is no Constitutional provision or Federal law requiring electors to vote in accordance with the popular vote in their States. But some States do have specific voting requirements.
Federal law does not govern the general appearance of the Certificate of Vote, so the format can vary from State to State. The electors must execute six Certificates of Vote. Federal law requires that each Certificate of Vote must:
- contain two distinct lists, one for President and one for Vice President and must:
- list all persons who received electoral votes for President and the number of electors who voted for each person.
- list all persons who received votes for Vice President and the number of electors who voted for each person.
- not contain the names of persons who did not receive electoral votes.
- be signed by all of the electors.
- be attached to an original Certificates of Ascertainment retained by the State.
- must be sealed up and certified by the electors, after being paired with the Certificate of Ascertainment, as containing the list of electoral votes of that State for President and Vice President.
Distribute the Paired Certificates of Vote and Certificates of Ascertainment
Each State must send the six pairs of Certificates to designated Federal and State officials immediately after the meeting of the electors.
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.
The Archivist of the United States is required by law to perform certain functions relating to the Electoral College (3 U.S.C. §§ 6, 11, 12, 13). The Archivist has delegated the authority to carry out the administration of the Electoral College process to the Director of the Federal Register.
Before Election Day
In the months leading up to Election Day of each Presidential election year, the Archivist sends a letter to the Executive of each State referencing the States’ responsibilities regarding the Electoral College and directing them to this website. OFR prepares to receive the Electoral College Certificates from the States and contacts Congressional staff to make arrangements for the delivery of the Electoral College Certificates to Congress.
During the weeks immediately before and after the general election, OFR interacts with each State to identify those responsible for the Electoral College process within that State.
Receipt of Certificates of Ascertainment
Certificates of Ascertainment should begin arriving at NARA and OFR within a few weeks following election day. NARA's mailroom makes a record of the Certificates of Ascertainment it receives and transmits them to the OFR. OFR logs receipt of the Certificates of Ascertainment it receives, whether from NARA's mailroom or directly from the States, and checks them for facial sufficiency. If there are any problems with a Certificate of Ascertainment, OFR notifies the State's point(s) of contact about the problem. After the Certificates of Ascertainment have been determined to be facially sufficient OFR posts them on this website.
Receipt of Certificates of Vote
Certificates of Vote begin arriving at NARA and OFR shortly after the meeting of the electors. NARA's mailroom makes a record of the Certificates of Vote it receives and transmits them to the OFR. OFR logs receipt of the Certificates of Vote it receives, whether from NARA's mailroom or directly from the States, and checks them for facial legal sufficiency. If there are any problems with a Certificate of Vote, OFR notifies the State's point(s) of contact about the problem. After the Certificates of Vote have been determined to be facially sufficient, OFR posts them on its website.
Certificates of Vote Subject to the Call of the President of the Senate
OFR holds one of the two original Certificate of Vote pairs subject to the call of the President of the Senate in case one or more of the Certificates of Vote fail to reach the Senate on time. If the Archivist does not receive a Certificate of Vote from a State by a week after the meeting of the electors, OFR calls that State's point(s) of contact to make sure the Certificates of Vote were sent and asks the State to trace the package. If OFR does not receive any Certificates of Vote from a State by the deadline for receipt of electoral votes (the fourth Wednesday in December), OFR gets a duplicate original from the chief election officer of the State or the Federal District judge (3 U.S.C. §§ 12 and 13).
After Congress has met in joint session for the official counting of electoral votes, all Certificates of Ascertainment and Certificates of Vote remain available for public inspection at OFR for one year and then are transferred to NARA for permanent retention.
House and Senate staff meet with OFR staff to inspect the Certificates of Vote in late December. 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.
Congress meets in joint session in the House of Representatives on January 6 to count the electoral votes. The Vice President, as President of the Senate, is the presiding officer, whose powers are limited by Federal statute to performing ministerial duties. The President of the Senate opens the votes of the States in alphabetical order, and hands them to the appointed Tellers, who announce the results out loud. The President of the Senate then calls for any objections.
To be recognized, an objection must:
- be submitted in writing
- be signed by at least one-fifth of the House and one-fifth of the Senate
- state clearly and concisely, without argument, one of two acceptable grounds for objection; that:
- a. the electors of the State were not lawfully certified under a Certificate of Ascertainment, or
- b. the vote of one or more electors has not been regularly given.
If an objection is recognized, the House and Senate withdraw to their respective chambers to consider the merits of any objections, following the process set out in 3 U.S.C. §§ 15 and 17. After all the votes are recorded and counted, the President of the Senate declares which persons, if any, have been elected President and Vice President of the United States.