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We the People: Congress debates how a president should be declared the election winner

Sept. 25, 2022 Updated Sat., Oct. 22, 2022 at 3:01 p.m.

Vice President Mike Pence reads the final certification of Electoral College votes cast in the November 2020 presidential election during a joint session of Congress, after working through the night, at the Capitol in Washington, D.C., on Jan. 7, 2021.  (J. Scott Applewhite/Pool)
Vice President Mike Pence reads the final certification of Electoral College votes cast in the November 2020 presidential election during a joint session of Congress, after working through the night, at the Capitol in Washington, D.C., on Jan. 7, 2021. (J. Scott Applewhite/Pool)
By Jim Camden For The Spokesman-Review

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

This week’s question: We elect a president for how many years?

A president’s term lasts for four years, with an election in each year divisible by four, like 2020 and 2024, and a term that starts on Jan. 20 of the next year.

Although the rules for electing the president are laid out in Article II of the U.S. Constitution and the 12th Amendment, Congress is looking at ways to clarify how the winner is declared.

The American presidential election process is more complicated than the election for a member of Congress, a governor, legislator or mayor, where the person with the most votes is declared the winner.

The campaigning by potential candidates often starts about two years before the election, with state presidential primaries starting at the beginning of the election year and conventions to name each party’s nominee that summer.

Although the entire nation votes for president on a Tuesday in early November – or the weeks leading up to it in many states – the president is chosen through individual elections in each of the 50 states and the awarding of “electors” to the Electoral College. Each state gets two electors for its senators and one for each of its members of the House of Representatives. Those electors are awarded to the candidate who wins that state’s popular vote.

In most elections, the person who becomes president has received the most votes nationwide as well as the most electors. In some years – such as 1876, 2000 and 2016 – a president can win the most votes in the Electoral College without winning the popular vote. That most often happens when one candidate wins some states by large margins but their opponent wins enough other states by narrow margins and collects all of those states’ electors.

Each state’s Electoral College members meet in their state capital in mid-December, and send their results to Congress, which formally accepts the tally in early January, two weeks before the inauguration on Jan. 20.

In most presidential elections, that January meeting of Congress is just a formality. Last year, however, President Donald Trump contested his loss to President-elect Joe Biden and tried to keep Congress from accepting the results of the Electoral College.

Although Trump lost the official popular vote nationwide, he tried to persuade Vice President Mike Pence, who was presiding over the formal ratification, to refuse to accept the results from some states he had lost in relatively close elections. But the legal challenges to those elections had failed and Pence said he did not have the authority to reject the results.

Trump supporters stormed the Capitol Building to prevent Congress from ratifying the results, but they only succeeded in delaying, not blocking the ratification.

Although the current law governing the acceptance of the Electoral College results was passed in 1887, there had never been a serious challenge to ratifying those results before 2021. Since the Jan. 6 riot, Congress has been studying ways to update the law to prevent a similar attempt to block the acceptance of the results and ensure the votes tallied in January reflect each states’ presidential vote.

Last week, the U.S. House of Representatives passed its version of an electoral count reform act, which makes clear that a vice president’s role in the congressional process is “ministerial” – that is, he or she doesn’t have the authority to reject the tally each state sends.

A bill pending in the Senate, scheduled for a hearing this week, also says the vice president’s role in the process is ministerial, although there are differences between the two proposals.

Under the current law, a single member of the House and a single senator can object to the electoral count a state sends, which would then require Congress to consider that challenge. The House bill would require a challenge to be made by a third of each chamber, while the Senate bill would set the level at one-fifth of each chamber.

The two bills also have some differences in how to handle a quick judicial review of any challenge to the count by a presidential candidate, changes to when the members of the Electoral College must meet and how to handle situations in which one candidate doesn’t concede the election after a set amount of time.

Both bills have bipartisan support, although the Senate bill has 10 Republican co-sponsors and the House bill received only nine Republican votes when it passed last week. If the Senate bill passes in its current form, a conference committee likely will try to craft a compromise that can pass both chambers before the end of the year.

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