Today is the day on which we suppose that the US Congress will certify the count of the votes of the Electoral College, and Barack Obama will be elected to a second term in office starting 3 hours and 6 minutes from now. You can watch it live on C-SPAN. The US National Archives has an excellent web page detailing the many Constitutional provisions and statutes dealing with the election of the President. Title 3 of the United States Code, Chapter 1, Section 11 contains this:
The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer. … Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.
This is the statutory provision that some birthers are invoking in their attempts to forestall Barack Obama’s second term as President. Faxes and letters reportedly have been sent to members of Congress urging them to make such an objection. While the statute seems to be directed at resolving controversies over the electoral votes from individual states, the 20th Amendment makes it clear that Congress has a role in determining whether the president elect may take office:
Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
It would seem to this writer that objections to qualifications apply to the
“President elect” which refers to the person selected by the Electoral College and certified by the Congress. That is, the objection by one House member and one Senator is not the appropriate time to determine qualifications, but that it should come immediately after the vote has been certified.
I do not know precisely how such a decision would be carried out, but this provision has been cited by the courts in support of the proposition that it is the Congress who makes the call as to whether the person elected as President may assume office.
Now is the time; today is the day. If there be any objections speak now, or forever hold your peace. (My comment is a facetious one. Birthers never admit defeat and will never hold their peace. They will keep on beating that dead horse until the Death Panel shuts off their oxygen.)
The certification of the vote has completed. The President of the Senate did not ask for objections. No one raised any point of order. The House chamber was largely empty.