The Constitution and the Federal Election Process

On November 5, 2024, voters will go to the polls in person to elect the next President and Vice President of the United States and members of the 119th Congress. The way this process is conducted and the role of the Constitution in setting the guidelines for elections have changed significantly over time.

To better understand how federal elections are conducted, here are some milestones and explanations of the process.

What is the basic process for electing the President and Congress?

When elections were held in 1788 and 1789 to elect the first president, vice president, and Congress, the process was still a work in progress. The framers of the 1787 Constitution had created a new institution, the Electoral College, to select the President and Vice President, and these elections were the first time this new system was implemented.

The Electoral College establishes in Article 2, Section 1 of the Constitution that the number of presidential electors equals the number of members of a state’s congressional delegation. The candidate who receives the votes of a majority of voters from every state (and, since 1961, the District of Columbia) is elected president, and the runner-up becomes vice president. Under the original Constitution, electors voted indiscriminately for both president and vice president, resulting in a tie between Thomas Jefferson and Aaron Burr in the 1800 election. The 12th Amendment solved this problem by changing the procedure to require different ballots for the president and vice president.

Today, a presidential candidate needs at least 270 votes to win an election. If there is no candidate who meets the minimum requirements to win, the House of Representatives meets in January to determine the winner of the presidential race in a contingency election, and the Senate chooses the vice president. This has happened three times in American history, not since 1837.

In congressional elections, the Constitution provided for the direct election of members of the House of Representatives “by the people of the several States,” but for the election of members of the Senate by the state legislatures. In 1913, the 17th Amendment changed the procedure for the Senate to align with direct popular elections for the House of Representatives.

Who set the rules for electing a president, vice president, and members of Congress?

The federal and state governments are jointly responsible for conducting general elections. Pursuant to Article I, Section 4, Clause 1 of the Constitution (the Elections Clause), the state legislatures shall determine the times, places, and manner of holding elections for the House of Representatives and the Senate, subject to the power of Congress to change state regulations. The basic requirements for presidential and vice-presidential elections are set forth in the 12th Amendment, such as the rules of the Electoral College and the conditional elections in Congress when no candidate receives a majority in the general election.

Pursuant to Article II, Section 1, Clause 5 of the Constitution (the Qualifications Clause), the President must be a natural-born citizen, at least 35 years old, and a resident of the United States for at least 14 years. Additionally, term limits under the 22nd Amendment bar candidates who have been elected president twice or who would serve for more than 10 years by filling another candidate’s unexpired term. And if the Senate convicts a federal official, including a president, in an impeachment trial, the Senate can also vote to bar that person from holding public office.

For congressional elections, Article I, Section 2 of the Constitution sets the minimum age for the House of Representatives at 25 years old, with the candidate having been a citizen of the United States for at least seven years, while Article 1, Section 3 sets the minimum age for candidates in the Senate at 30 years of age and nine years of citizenship. Each candidate must be a resident of this state at the time of election.

For presidential and congressional candidates, the Insurrection Clause of the 14th Amendment bars from office anyone who has “participated in insurrection or rebellion against it, or given aid or comfort to the enemy.” But Congress can, with a two-thirds majority of each House of Representatives, do so Remove obstruction.”

Who can vote in general elections?

Today, most U.S. citizens of legal age can register to vote in local, state, and general elections. The voting age of eligibility to vote was established by the 26th Amendment of 1971, which requires voters to be 18 years of age on or before Election Day. States also have residency requirements for voting. People who are not citizens cannot take part in elections. States also have different rules about when people convicted of a felony can regain their voting rights. But 13 states have the ability to permanently ban a convicted felon from voting under certain conditions.

When will general elections take place?

The official date of Election Day is set by law as “the Tuesday after the 1st Monday in November in every even-numbered year.” The last change to this date was in 1845. However, the voting process can begin much earlier. According to the National Conference of State Legislatures (NCSL), 47 states, the District of Columbia and three territories offer some form of early voting by mail or in person. According to NCSL, the average start date for early voting is 27 days before Election Day. Minnesota, South Dakota and Virginia began early voting on September 20, 2024. All votes must be cast before polls close on November 5, 2024, and ballots received by mail must be postmarked by that date.

What happens after election day?

After Election Day, states tabulate the results, including absentee and overseas voting. States have different deadlines for certifying presidential and congressional election results. Results are typically certified by the end of November, but some states are setting a December 6 deadline.

Every state has laws that allow a candidate, including a presidential or congressional candidate, to request an election recount. In some cases, a recount will automatically start based on the margin between the top two candidates.

In presidential elections, a federal law (3 U.S. Code § 5), known as the “safe harbor provision,” requires a state to resolve these disputes and select its electors six days before Electoral College members meet in person. In 2024, this deadline is December 8, as the College votes on December 17, 2024.

Federal law requires states to submit certified Electoral College results to the vice president, who serves as president of the Senate, and other parties by the fourth Wednesday in December; in 2024 this date falls on December 25th.

Then, pursuant to Federal Law 3 USC §12, 13, the Vice President or Archivist of the United States requests a “Secretary of State or equivalent official” of that State to send the certified election results to Congress by mail or messenger.

Members elected to the House and Senate will be represented at the first session of the 119th Congress on January 3, 2025. In rare cases, Congress has assumed the authority to refuse admission to a newly elected member under Article I, Section 5. But a Supreme Court decision in 1969, Powell vs. McCormickseverely restricted this practice.

The 12th Amendment requires a joint session of Congress to count the electoral votes and determine the winners of the presidential election. This joint session of Congress will take place on January 6, 2025 at 1:00 p.m. Should there be any delays related to the counting in Congress or an eventual election, these processes would have to be completed by 12:00 p.m. on January 20, 2025, before the next President and Vice President take their oath of office. If this does not happen, the Speaker of the House of Representatives would serve as president until Congress certifies a winner of the presidential election.

Scott Bomboy is editor-in-chief of the National Constitution Center.