Transcript

Everybody’s heard the saying “one person, one vote,” right?  Deep down we all know better, far from it, through various notions of who qualifies as a "person” and who gets to vote and yet still we say it. Elections are the mechanism by which those persons — people — have their say, and, ultimately, speak. When all is said and done in the convoluted process of American presidential elections, hundreds speak for the tens of millions who vote — and in the end it’s a set of documents that speak for us all, for the record.

A document that changed the world: the set of materials produced in support of the work of the 59th Electoral College vote, 2020.

I’m Joe Janes of the University of Washington Information School, and if you’re looking to go into the deepest, darkest, nerdiest electoral weeds, you’ve come to the right place.  Our focus here is exclusively on the mechanics and the materials that make it all work.  I lived in New York state for my first election and remember being sternly advised that if I wanted to write in a presidential candidate, I would have to actually write in the names of all the electors for that candidate, and even though I really hadn’t been thinking about it that would’ve put me right off. We all probably know by now that there are only a few hundred people who get to directly vote for president and vice president of the United States, the electors who the rest of us vote for, knowingly or otherwise, who gather to cast their votes typically in state capitals a few weeks later.

Those sessions, when the electors put pen to paper and perform the true act of voting for president and vice president, are meant to be ceremonial, proscribed, almost ritualistic, but all those steps and all those documents play important roles.  So yes, there’s all the rigmarole and signing of very stiff looking pieces of paper — and I’m here to tell you, well then what happens, after the ceremonies, or for that matter before, what makes it work?  What do those papers say?  Into the weeds we go.

We’ve all grown accustomed to watching the election night returns like they were sporting events, where the score is always displayed on the TV screen and we wait for Al Michaels or Mary Carrillo to tell us the final score when the game is over.  (Fun fact, sports require final reports too.)  We all see the numbers pile up but the networks don’t get to decide or declare who wins, no matter how obvious it might be. The steps that follow and the papers that record those steps make it real, legal, permanent, in one of the most basic functions of a document: to document.

A great deal of what happens is spelled out in multiple provisions of the Constitution, starting with Article II, Section 1, later revised in ways small and large by no fewer than 10 subsequent amendments ranging from the 12th in 1804 creating separated votes for president and vice president, through a number of suffrage expansions by race, “servitude,” sex and age; additional details for filling vacancies; term limits; granting electoral votes to the District of Columbia, abolition of poll taxes; and the quite rococo processes of the 25th Amendment around vacancies and the disability of the president. No aspect of the Constitution has been amended more times than by which the office of the presidency is assumed. Furthermore, U.S. Code Title 3, Chapter 1 fleshes out more specifics, with precursor legislation that goes back to 1887, based largely on the still disputed electoral debacle of 1876.

While most people know the electoral college exists and more or less what it does, far fewer likely know critical roles played by the National Archives. As the keeper of the nation’s official records, the Archives facilitates coordination with all the states and the Congress. They produce and publish a handy guide for state officials, including a checklist of about two dozen steps from identifying a contact person for ongoing communication to keeping the tracking number when the appropriate certificates are sent out.

Each state is responsible for running its elections in its own way, subject to provisions of the Constitution and federal law.  Two sets of documents are required for presidential election, following state certification of the final results. The first are Certificates of Ascertainment, in which the governor lists the names of the electors chosen by the voters and the number of votes each of them has received. These must be hand signed by the governor and bear the state seal. Nine of the certificates are prepared, three sent as soon as possible to the Archives and six waiting for the actual vote of the electors.

Which is where the second set of documents come in, the Certificates of Vote. When the electors meet, they must each cast individual signed separate ballots for president and vice president.  The votes are tallied — typically a matter of no great suspense, though the issue of “faithless electors,” who go rogue and vote for somebody other than the winner of the state popular vote, has become sufficiently bothersome that a majority of states now have some law fining or disqualifying faithless electors. Once that’s all settled, each elector signs six Certificates of Vote listing all persons who received electoral votes for both offices and the number of votes.

There are no federal standards for how these certificates should look, though they may not include names of any people who did not receive votes and must all be signed by all electors. This leads to a quite charming range of examples from the deeply elaborate with lots of exotic gothic fonts and border frippery to straightforward and frankly disappointing word-processed documents that might just as easily be recording next year’s Rotary president.  They also feature closing phrases like “In witness whereof, I have hereunto set my hand and caused the Seal of the State of Washington to be affixed” or some such exorbitant language; these are called “eschatochols,” descendants of medieval charters and are much the same as any notary public would use. Plain or fancy, they do the job.

These are paired with the remaining Certificates of Ascertainment, sealed up and distributed: two to the Archivist of the United States, two to the Secretary of State of the state, one to the chief judge of the Federal District Court where the electors have met, and the one that really matters, to the President of the Senate (the sitting vice president), by registered mail no less. If those certificates don’t get to the President of the Senate or the Archivist within about nine days they are then directed by law to request the relevant state’s Secretary of State to immediately send their copies and moreover to send a “special messenger” to the local federal district judge to fetch the ones they have by “the most expeditious method available,” and if that messenger neglects their duty there’s a $1,000 fine. Whew.

Presuming that all works out, there is then a joint session of Congress where the President of the Senate opens all the sealed certificates, in alphabetical order, reads them out and tellers — usually chairs and ranking members of Senate and House administrations committees — tally the final votes. This process is often expedited, with the envelopes being opened and passed in short order dispensing with a reading of the formal language. In 1997, this all took 24 minutes; in 2013, 23 minutes; in 2017, 41 minutes.

Federal law spells out several provisions regarding the Congressional session and disposition of any potential objections to one or more states’ votes. Nominally this could be as a result of questions of authenticity of the documents themselves including the possibility of multiple certificates from the same state, either by two different state authorities making different determinations, no determination by any state authority, or the receipt of some extraneous certificate not from the recognized system laid out in that state’s law. In practice this process, requiring objection from at least one member from each house, has been invoked only twice since the original 1887 federal law was enacted, in both cases by Democrats; in 1969, when an elector from North Carolina faithlessly but legally voted for George Wallace rather than Richard Nixon; and in 2005, when objections were made to voting irregularities in Ohio. In each case, the individual houses debated per the law and rejected the objections. 

The 1961 counting of the 1960 election, decided by a razor thin popular vote majority but a substantial electoral majority, provided the spectacle of then VP Nixon presiding over the count of the election he lost to John Kennedy.  In a gruesome twist of fate, Hawaii, voting in its first presidential election, was sufficiently close that two sets of electoral votes were submitted to meet the deadlines; the final count after Christmas showed Kennedy winning by 115 votes, and Nixon unilaterally suggested ruling in favor of the Democratic slate of electors, “so as not to delay the count,” which was agreed to by unanimous consent. That must have stung.

This is one of the simplest, if not necessarily the most straightforward, of document stories, or at least it should be and yet in times of stress or doubt or confusion, even or perhaps especially in a digital, streaming, cloud-based world, these pieces of paper, documents are there to provide clarity.  All the steps and signatures and seals and rules and laws and forms and ceremonies confer heft, seriousness, reality, officialness to the documents and to the process and results.  Those other five official backup copies are only required to be maintained for a year, though I suspect mostly they’re kept forever as an enduring record of one of the most pivotal decisions a democracy can make.

One often hears that “the system” has worked: the political system, the electoral system, the legal system, whatever.  True, but — those systems don’t, won’t, can’t work without information systems and more specifically documents and information objects to reinforce and bolster the processes and procedures. Otherwise, it’s all just talk, no matter how many other people try to have their say.

Sources:

“Arizona Group’s Fake Electors Try to Cast 11 Electoral Votes for Trump.” Accessed January 3, 2021.

National Archives. “For State Officials,” November 14, 2019.

National Archives. “Instructions and Guidance for State Officials and Points of Contact,” July 27, 2020.

National Archives. “Key Dates and Events for State Officials and Points of Contact,” July 27, 2020.

Neale, Thomas. “The Electoral College:  A 2020 Presidential Election Timeline.” Congressional Research Service, October 22, 2020.

Office of the Federal Register, National Archives and Records Administration. “The 2020 Presidential Election: Provisions of the Constitution and U.S. Code.” National Archives and Records Administration, July 2020.

Rybicki, Elizabeth. “Counting Electoral Votes: An Overview of Procedures at the Joint Session, Including Objections by Members of Congress.” Congressional Research Service, December 8, 2020.

Shoenberger, Elisa. “What Do Archivists Have to Do with the Presidential Election?” Library Journal. Accessed January 3, 2021.

“The Electoral College.” Accessed January 3, 2021.

“United States Electoral College.” In Wikipedia, December 31, 2020.

“U.S.C. Title 3 - THE PRESIDENT.” Accessed January 3, 2021.