The Constitution and the federal election process

On Nov. 5, 2024, voters will head to the polls in person to select the next president and vice president of the United States, as well as members of the 119th Congress. How that process is conducted, and the Constitution’s role in setting the guidelines for elections, has changed greatly 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?

In 1788 and 1789, when elections were conducted to pick the first president, vice president, and Congress, the process was a work in progress. The drafters of the Constitution in 1787 had created a new institution, the Electoral College, to select the president and vice president, and these elections were the first time in which this new system was implemented.

The Electoral College, in Article 2, Section 1 of the Constitution, sets the number of  presidential electors as equal to the number of members in a state’s congressional delegation. The candidate receiving votes from a majority of electors from all states (and as of 1961, the District of Columbia) is elected president, and the runner-up becomes vice president. Under the original Constitution, electors cast votes for both president and vice president with no distinction, leading to a tie in the 1800 election between Thomas Jefferson and Aaron Burr. The 12th Amendment resolved this issue by changing the process to require distinct ballots for the president and vice president.

Today, a presidential candidate needs at least 270 electoral votes to win an election. If there is no candidate with the minimum requirement to win, the House of Representatives convenes in January to pick the winner of the presidential race in a contingent election, and the Senate picks the vice president. This has happened three times in American history, and not since 1837.

In congressional elections, the Constitution provided for the direct election of House members “by the People of the several States,” but the election of members of the Senate by the state legislatures. In 1913, the 17th Amendment changed the process for the Senate to match the direct popular elections held for the House.

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

The federal government and the states share responsibility for conducting general elections. Under the Constitution’s Article I, Section 4, Clause 1 (the Elections Clause), state legislatures choose the times, places, and manner of holding elections for the House and the Senate, subject to Congress’ authority to amend state regulations. The basic requirements for the presidential and vice-presidential elections are set by the Constitution’s 12th Amendment, such as the rules of procedure for the Electoral College, and the contingent elections held in Congress if no candidate gets a majority in the general election.

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

For congressional elections, the Constitution’s Article I, Section 2 sets the age requirement at 25 years for the House, with the candidate being a United States citizen for at least seven years, while Article 1, Section 3 sets the Senate candidate requirements at 30 years of age and nine years of citizenship. For any candidate, they must be a resident of that state at the time of their election.

For presidential and congressional candidates, the 14th Amendment’s Insurrection Clause bars anyone from office who “shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

Who can vote in general elections?

Today, most Americans citizens of legal age can register to vote in local, state, and general elections. Voter-age eligibility was set by the 26th Amendment in 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 can’t vote in elections. States also have different rules about when people convicted of a felony have their voting rights restored. But 13 states have the ability to permanently bar a convicted felon from voting under certain conditions.

When are general elections held?

The official date of Election Day is set by law as “the Tuesday next after the 1st Monday in November, in every even numbered year.” The last change in this date was in 1845. But the process of voting can start 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. The NCSL says the average early voting start date is 27 days before Election Day. Minnesota, South Dakota, and Virginia started their early voting on Sept. 20, 2024. All votes must be cast before the polls close on Nov. 5, 2024, and ballots received by mail need to be postmarked by that date.

What happens after Election Day?

After Election Day, the states tabulate the results, including absentee and overseas ballots. States have different deadlines for certifying results for presidential and congressional elections. The results are usually certified by the end of November, but some states set Dec. 6 as their deadline.

Each state has laws that allow a candidate, including a presidential or congressional candidate, to ask for an election recount. In some instances, a recount is automatically started based on the margin separating the top two candidates.

For presidential races, a federal law amended in 2022 (3 U.S. Code § 5) known as the “safe harbor provision” requires a state to settle these disputes and determine its electors six days before the Electoral College members meet in person. In 2024, that deadline is Dec. 11, since the college votes on Dec. 17, 2024.

Federal law requires states to deliver certified Electoral College results to the vice president, serving as president of the Senate, and other parties by the fourth Wednesday in December; in the year 2024 that date falls on Dec. 25.

Then, by federal statute 3 U.S.C. §12, 13, the vice president or the Archivist of the United States asks a “secretary of state or equivalent officer” of that state to send the certified election results to Congress, using direct mail or a messenger.

For members elected to House and Senate, they are seated at the first meeting of the 119th Congress on Jan. 3, 2025. On rare occasions, Congress has assumed powers under Article I, Section 5 to refuse to seat a newly elected member. But a Supreme Court decision in 1969, Powell v. McCormick, greatly limited that practice.

A joint session of Congress is required by the 12th Amendment to count the electoral votes and declare the winners of the presidential election. That joint session of Congress will be held on Jan. 6, 2025, at 1 p.m. If there are delays related to the count in Congress or a contingent election, those processes would need to be finished by noon on Jan. 20, 2025, for the next president and vice president to take their oaths of office. If that does not happen, the Speaker of the House would serve as president until Congress certifies a winner of the presidential election.

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