Debate rules
The structure of the Electoral Count Act's procedural provisions generally requires that any questions arising during the counting process be determined by the two houses acting separately, rather than by both houses together on the House floor. Section 5 (now 3 U.S.C. § 18) states that "the President of the Senate shall have power to preserve order; and no debate shall be allowed and no question shall be put by the presiding officer except to either House on a motion to withdraw." Section 6 (now 3 U.S.C. § 17) states that whenever the two Houses have separated "to decide upon an objection ... or other question arising in the matter," each Senator and Representative may "speak to such objection or question" for five minutes, and not more than once.[46] After the debate has lasted two hours, the presiding officer of each House must "put the main question without further debate."[46] Once the two houses have both voted, "they shall immediately again meet, and the presiding officer shall then announce the decision of the questions submitted."
Procedures for joint session
Electoral votes are counted in a joint session of Congress, 2017
Under Section 4 (3 U.S.C. § 15), Congress is required to be in session on January 6 following the election to count the votes, although this date can be changed by law. Due to the 20th Amendment, the joint session is conducted by the new Congress whose term begins on January 3, rather than the outgoing lame-duck Congress. The Senate and House must meet in the House Chamber at "1 o'clock in the afternoon" on January 6, and the president of the Senate – the sitting vice president of the United States – is the presiding officer.[39] Section 7 (3 U.S.C. § 16) specifies the seating arrangements in the House chamber.[44]
Two tellers must be "previously appointed" by the Senate and two tellers by the House of Representatives. The president of the Senate must open all the "certificates" and "papers purporting to be certificates" of the electoral votes, and hand them to the four tellers as they are opened. The certificates and papers must be "opened, presented, and acted upon in the alphabetical order of the States, beginning with the letter A." The tellers, "having read the [papers] in the presence and hearing of the two Houses," must "make a list of the votes as they shall appear from the ... certificates."
If there are any objections to the returns from any state (see Substantive counting rules below), they must be resolved before the process can continue to the next state: "No votes or papers from any other State shall be acted upon until the objections previously made to the votes or papers from any State shall have been finally disposed of."[39] This has only happened twice. The first time was in 1969, with an objection to a faithless voter in North Carolina.[4] The second was on January 6, 2005 with a formal challenge to Ohio's electoral votes, resulting in a vote — 1-74 (Yea-Nay) in the Senate and 31–267 in the House.
Role of the vice president
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.[19] 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."[11]:634
As the custodian for papers, the Senate president is required by the Constitution to "open all the certificates,"[19] which the Act further describes as "all the certificates and papers purporting to be certificates." 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), ."[10]:652[11]:n.580 These provisions "seem designed to drain as much power as possible away from the Chair and give it to the two houses."