The Constitution instructs that electoral votes must be sent to the president of the Senate – who is the sitting
vice president of the United States – and that the Senate president must "open all the certificates" in the presence of both houses.[SUP]
[18][/SUP] However, the sitting vice president is sometimes a candidate for president in the election, is often a candidate for re-election to the vice presidency, and is almost always a partisan with a keen interest in the outcome.
Recognizing this, one key purpose of the Electoral Count Act's procedural provisions is "to drain away as much power as possible from the Senate president, whom the [law] appoints to preside at the joint session when Congress counts the votes."[SUP]
[10][/SUP][SUP]:634[/SUP]
As the custodian for papers, the Senate president is required by the Constitution to "open
all the certificates,"[SUP]
[18][/SUP] which the Act further describes as "all the certificates and papers purporting to be certificates."[SUP]
[36][/SUP] In doing so, the goal of the Act "was to reduce the Senate President's discretionary power as gatekeeper to the absolute minimum...."[SUP]
[10][/SUP][SUP]:639[/SUP] Indeed, in one case from 1889, papers sent as a "practical joke" have been presented to the joint session.[SUP]
[10][/SUP][SUP]:638[/SUP] Whether the Senate president can be required to present or not present any particular paper is an open question, but one commentator argues that concurrent action by both houses would settle the matter while disagreement between the houses would see the Senate president's decision upheld.[SUP]
[10][/SUP][SUP]:639[/SUP]
As the presiding officer during the
joint session, the Senate president must follow the Electoral Count Act's provisions governing debate and procedure, which are unusually specific (see above), with one early commentator describing them as "exhaustive" and as good "as human wit can divine."[SUP]
[9][/SUP][SUP]:652[/SUP][SUP]
[10][/SUP][SUP]:n.580[/SUP] These provisions "seem designed to drain as much power as possible away from the Chair and give it to the two houses."[SUP]
[10][/SUP][SUP]:640[/SUP] After the 2000 election, Vice President
Al Gore ruled that a number of procedural motions were out of order by extending the Act's formal requirements for substantive objections – that is, to be presented in writing and signed by both a Representative and a Senator – to procedural questions.[SUP]
[10][/SUP][SUP]:648–49[/SUP] This suggests that if procedural motions and appeals were made in that manner, they would be allowed and the two houses would have to separate to consider them.[SUP]
[10][/SUP][SUP]:649[/SUP]
