NARA's Role in the Electoral College
January 2001 Calendar: Electoral College feature article
There are a lot of misconceptions about the electoral college. One thing, however, is clear: The electoral college is administered by the National Archives and Records Administration.
NARA's Office of the Federal Register operates as an intermediary between the governors and secretaries of state of the various states and the Congress. It also acts as a kind of agent of the Congress in the sense that it is responsible for reviewing the legal sufficiency of the certificates before the House and Senate accept them as evidence of official state action.
One of the striking things about the electoral college process is that so little of it is codified in Federal law. You would expect that the process for electing the leader of the most powerful nation on earth would be set out in great detail in Federal laws and regulations. Article II, section 1, of the Constitution simply directs each state to appoint electors. A few provisions in the U.S. Code set out specific duties for the Archivist and the states to perform, but most of the procedures are a matter of state law or custom. A great deal of the Federal Register's role as an intermediary between the states and the Congress has simply evolved out of necessity.
Federal law requires the states to send the Archivist the electors' credentials ("Certificates of Ascertainment") and two sets of electoral votes ("Certificates of Vote"). "It seems very perfunctory and routine," says Michael White, the Federal Register's legal director. "But in reality, the Federal Register has to be a lot more proactive and vigilant to ensure that the whole thing functions properly. I would guess that at least once during their tenure, every Federal Register Director wakes up in the middle of the night thinking about what could go wrong with the Electoral College."
The Federal Register kicks off the process every 4 years around the end of September. It prepares letters for the Archivist to send out to the 50 governors and the mayor of the District of Columbia and includes specific instructions for the states to follow.
Governors and secretaries of state may change once or even twice between Presidential elections. Some states may have completely new staff members with no experience in carrying out electoral college duties. Sometimes the Federal Register's letter or follow-up phone call marks the first time any current state official has thought about the electoral college.
The next step in the process is the meeting of electors in each state (December 18 in 2000). They generally gather in the state capitol or another state office building.
The short time allotted for submission of electoral votes is perhaps the Federal Register's greatest concern. In 1996 a small southern state shut down its government offices—all of them—between Christmas Day and New Year's weekend. It became apparent that there was a misunderstanding among state offices as to which one would authenticate the certificates and send in the votes.
"It was really coming down to the wire," White recalls, "and not one state official was available to answer the phone." The Federal Register has the authority under law to take some extraordinary actions, such as hiring a plane or sending U.S. Marshals to obtain certificates from the state or a backup copy from a Federal judge. But that authority isn't worth much if the certificates have not been executed.
"I decided to call the state police and dictated a message to the governor over the phone," White recalls. "A state trooper hand-carried the message to the governor's mansion. We made contact with the governor's counsel and got the state's votes to the Congress in time for the official counting. But it was a very near miss."
Albert Kapikian
Policy and Communications Staff
National Archives and Records Administration