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Plenty of interesting questions have arisen related to the unprecedented riot at the Capitol in Washington D.C. on January 6, 2021. In a recent report printed in the New Yorker, Keith Stern, a sergeant-at-arms staffer on the floor of the House of Representatives, relayed how everyone in the Chamber safely escaped as protestors stormed into the building, and he included this fascinating tidbit:

Someone said, “Where are the boxes? Do we still have them?” One of the parliamentarians came over to me and said, “The ballot boxes are safe.” If they’d been stolen or destroyed, to be honest, I don’t know what happens.

Stern is referring to the boxes which contain the electoral certificates of each state. In a ceremonial process at the end of a presidential election (cf. Amendment XII), the president of the Senate--in this case, Vice President Pence--must unseal, initiate an official count, and then declare a winner.

So, does anyone here know the answer to this: What is the procedure if the collected electoral ballots are stolen or destroyed before they are officially counted in a joint session of Congress? Is there any kind of provision for states to send new ballots? Can the House proceed without them?

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Stealing those papers (from Congress' session) would not change the legality of their recording with the Archivist according to the Electoral Count Act (3 U.S. Code § 6)... which by the way says that states must send

six duplicate-originals of the same certificate under the seal of the State

I doubt all 6 copies were stored in the same location in Congress. The ECA partly details where some of the copies are to be kept:

the certificate or certificates so received by the Archivist of the United States shall be preserved by him for one year and shall be a part of the public records of his office and shall be open to public inspection; and the Archivist of the United States at the first meeting of Congress thereafter shall transmit to the two Houses of Congress copies in full of each and every such certificate so received at the National Archives and Records Administration.

I'm guessing that the ad-hoc Congress procedure would have simply involved soliciting new copies from the Archivist.


Thanks to Steve Melnikoff for pointing this out: the actual procedure that was followed in 2020 (and probably was the rule for while) is a bit more involved than simply captured in the law. As a NARA publication details the number of copies & duplicates is actually greater and their distribution is more "spread out", but it seems that only six of these actually have the vote counts:

The Certificates of Ascertainment list the names of the electors appointed and the number of votes cast for each person.

  • The States prepares no less than SEVEN originals, which are authenticated by the Governor’s signature and the State seal, and TWO certified copies. Alternatively, NINE originals may be prepared.

One original along with two certified copies (or three originals, if nine were prepared) must be sent to the Archivist, David S. Ferriero, c/o Office of the Federal Register (F).

The Governors must submit the Certificates of Ascertainment “as soon as practicable” after their States certify election results.

  • The remaining SIX original Certificates of Ascertainment will be attached to the Certificates of Vote at the State meetings.

The electors record their votes on SIX “Certificates of Vote,” which are then paired with the SIX remaining original Certificates of Ascertainment.

  • After signing the Certificates of Vote, the electors seal and certify the electoral votes in packages containing a paired original Certificate of Ascertainment and original Certificate of Vote. They immediately distribute the paired certificates as follows:
  • One pair of original certificates is sent to the President of the Senate (Michael R. Pence)
  • Two pairs of original certificates are sent to the Archivist, David S. Ferriero, c/o Office of the Federal Register (F)
  • The Archivist holds one pair subject to the order of the President of the United States Senate in case the electoral votes fail to reach the Senate. The other pair is held by the Office of the Federal Register for public inspection for one year.
  • Two pairs of certificates are sent by registered mail to the Secretary of State of each State, who holds one pair subject to the order of the President of the United States Senate in case the electoral votes fail to reach the Senate.
  • One pair of original certificates is sent to the Chief Judge of the Federal District Court located where the electors meet. It is held subject to the order of the President of the United States Senate or the Archivist of the United States in case the electoral votes fail to reach the Senate or the Archivist.

The President of the Senate and the Archivist should have the electoral votes in hand by December 23, 2020. If votes are lost or delayed, the Archivist may take extraordinary measures to retrieve duplicate originals.

As the new Congress assembles, the Archivist transmits sets of Certificates to Congress, as requested. This generally happens when the Senate does not receive its set of Certificates on time. The transfer occurs in late December or early January when OFR’s Legal staff meets with representatives of the Secretary of the Senate and the Clerk of the House.

As you can see, duplicates are held "at the order of" the President of the Senate (the VP) both by the Archivist and also by the States, so either set could presumably be sent on their order/request (the latter would have probably taken longer to fetch though). Further, there's a duplicate simply held for anyone to see at the OFR. The Senate sending some "mission" there to inspect and copy them would have probably been the last resort.

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    +1. I think this was a key point that was missed in a lot of the coverage at the time. Incidentally, Wikipedia says, referring to the fact that each certificate is actually a pair of related documents, states that "One pair of certificates is sent to the president of the Senate; two pairs are sent to the Archivist; two pairs are sent via registered mail to the state's secretary of state; and one pair is sent to the chief judge of the closest United States district court". – Steve Melnikoff Jan 31 at 15:14
  • Any rationale why the VP may ask the Sec of State or the Federal District Court for replacement certificates, but the Archivist may only ask the Court? – Hagen von Eitzen Feb 2 at 21:57
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This is a "constitution as a computer programme", and it seems unclear because there is no constitutional procedure. When a computer program tries to access a resource and finds it missing the usual effect is for the program to crash.

What this misses is the the "hardware" is the government, made of lots of rational and intelligent people who can make decisions and not dumb electical circuits that just follow physical laws.

So the Joint Session reconvenes, the Vice President takes advice, and then makes a decision. The decision could be "Declare {Biden} President provisionally, request copies of the certificates from the several states, reconvene in one week to confirm. Then the Senate and House vote to approve that decision.

There are other things the VP could do, however he would have to make up his own "procedure". Provided Congress agrees, and the process isn't manifestly unfair, it doesn't cause the constitution to crash or the USA to stop functioning. The Constitution isn't a computer program.

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    I see little evidence worldwide that any government is "made of lots of rational and intelligent people," and IMO the USA is no exception. – alephzero Feb 1 at 13:58
  • There exists no provision that would allow to declare a provisional POTUS, so that is hardly a realistic option. But, given that at this time and age the content of the electoral certificate is widely known without need of reading it (because the results of each state have been conveyed by a myriad of other means) it would be not much of a stretch to get a consensus to "make do" as if the certificates were available (maybe even allowing representatives of the source state to produce new certificates, or asking for pictures of them to their capitols through electronic means). – SJuan76 Feb 1 at 14:59
  • Is "electical circuits" a pun or just a typo? – user253751 Feb 2 at 10:30
  • just a typo but I'll think I'll leave it there, just for the lols – James K Feb 2 at 19:42
  • @SJuan76 Myriad of other means is not good enough, probably. After all, there were people who'd utter their string opinion that completely different set of electors had cast completely different votes. Without provision, these would have to be counted as some of the "myriad". There's a reason why the transmissions are certificates and not post-its. – Hagen von Eitzen Feb 2 at 22:03

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