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Direct Election of Senators

Voters have elected their senators in the privacy of the voting booth since 1913. The framers of the Constitution,however, did not intend senators to be elected in this way, and included in Article I, section 3, "The Senate of theUnited States shall be composed of two Senators from each state, chosen by the legislature thereof for six Years;

and each Senator shall have one Vote." The election of delegates to the Constitutional Convention established theprecedent for state selection. The framers believed that in electing senators, state legislatures would cement their tiewith the national government, which would increase the chances for ratifying the Constitution. They also expectedthat senators elected by state legislatures would be able to concentrate on the business at hand without pressurefrom the populace.

This process seemed to work well until the mid-1850s. At that time, growing hostilities in various states resulted invacant Senate seats. In Indiana, for example, the conflict between Democrats in the southern half of the state and theemerging Republican party in the northern half prevented the election of any candidate, thereby leaving the Senateseat vacant for two years. This marked the beginning of many contentious battles in state legislatures, as the struggleto elect senators reflected the increasing tensions over slavery and states' rights which led to the Civil War.

After the Civil War, problems in senatorial elections by the state legislatures multiplied. In one case in the late 1860s,the election of Senator John Stockton of New Jersey was contested on the grounds that he had been elected by aplurality rather than a majority in the state legislature. Stockton based his defense on the observation that not allstates elected their senators in the same way, and presented a report that illustrated the inconsistency in state

elections of senators. In response, Congress passed a law in 1866 regulating how and when senators were elected ineach state. This was the first change in the process of senatorial elections created by the Founders. The law helpedbut did not entirely solve the problem, and deadlocks in some legislatures continued to cause long vacancies in someSenate seats.

Intimidation and bribery marked some of the states' selection of senators. Nine bribery cases were brought before theSenate between 1866 and 1906. In addition, forty-five deadlocks occurred in twenty states between 1891 and 1905,resulting in numerous delays in seating senators. In 1899, problems in electing a senator in Delaware were so acutethat the state legislature did not send a senator to Washington for four years.

The impetus for reform began as early as 1826, when direct election of senators was first proposed. In the 1870s,voters sent a petition to the House of Representatives for a popular election. From 1893 to 1902, momentumincreased considerably. Each year during that period, a constitutional amendment to elect senators by popular votewas proposed in Congress, but the Senate fiercely resisted change, despite the frequent vacancies and disputedelection results. In the mid-1890s, the Populist party incorporated the direct election of senators into its party platform,although neither the Democrats nor the Republicans paid much notice at the time. In the early 1900s, one state

initiated changes on its own. Oregon pioneered direct election and experimented with different measures over severalyears until it succeeded in 1907. Soon after, Nebraska followed suit and laid the foundation for other states to adoptmeasures reflecting the people's will. Senators who resisted reform had difficulty ignoring the growing support fordirect election of senators.

After the turn of the century, momentum for reform grew rapidly. William Randolph Hearst expanded his publishingempire with Cosmopolitan, and championed the cause of direct election with muckraking articles and strongadvocacy of reform. Hearst hired a veteran reporter, David Graham Phillips, who wrote scathing pieces on senators,portraying them as pawns of industrialists and financiers. The pieces became a series titled "The Treason of theSenate," which appeared in several monthly issues of the magazine in 1906. These articles galvanized the public intomaintaining pressure on the Senate for reform.

Increasingly, senators were elected based on state referenda, similar to the means developed by Oregon. By 1912,as many as twenty-nine states elected senators either as nominees of their party's primary or in a general election.

As representatives of a direct election process, the new senators supported measures that argued for federallegislation, but in order to achieve reform, a constitutional amendment was required. In 1911, Senator Joseph Bristow

from Kansas offered a resolution, proposing a constitutional amendment. The idea also enjoyed strong support fromSenator William Borah of Idaho, himself a product of direct election. Eight southern senators and all Republicansenators from New England, New York, and Pennsylvania opposed Senator Bristow's resolution. The Senateapproved the resolution largely because of the senators who had been elected by state-initiated reforms, many ofwhom were serving their first term, and therefore may have been more willing to support direct election. After theSenate passed the amendment, which represented the culmination of decades of debate about the issue, themeasure moved to the House of Representatives.

The House initially fared no better than the Senate in its early discussions of the proposed amendment. Muchwrangling characterized the debates, but in the summer of 1912 the House finally passed the amendment and sent it


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to the states for ratification. The campaign for public support was aided by senators such as Borah and politicalscientist George H. Haynes, whose scholarly work on the Senate contributed greatly to passage of the amendment.

Connecticut's approval gave the Seventeenth Amendment the required three-fourths majority, and it was added to theConstitution in 1913. The following year marked the first time all senatorial elections were held by popular vote.

The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides forthe election of senators by replacing the phrase "chosen by the Legislature thereof" with "elected by the people

thereof." In addition, it allows the governor or executive authority of each state, if authorized by that state's legislature,to appoint a senator in the event of a vacancy, until a general election occurs.

The 17th Amendment to the U.S. Constitution:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof,for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisitefor electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shallissue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executivethereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomesvalid as part of the Constitution.

The Election of 1796: Adams, Jefferson, and theFirst Partisan Presidential ElectionBy Nicholas Katers

After George Washingtons Farewell Address in the fall of 1796, the venerable military and political heroof the United States warned against the division of the nation. This warning was informed by a particularlytumultuous four years, including continuing problems with the British and the French in North Americaand the Whiskey Rebellion of 1794. The aforementioned rebellion was a particularly important episode forthe American government, because Washington exerted the military role of the office against a group oftaxpayers rebelling against prohibitive taxes on whiskey production. The executive branch, and the nationas a whole, was still in flux after Washingtons presidency but the fact that it was still in one piece was a

testament to his leadership ability.John Adams, who felt his time had come following eight years in the vice-presidential shadows, was thepresidential nominee of the Federalist Party caucus. Thomas Jefferson, a former secretary of state and asmall government advocate, was nominated by the Democratic-Republican caucus. Aside from being thefirst election with definitive party politics, it was also a particularly dirty battle for the presidency. Neithercandidate did much campaigning personally, but their proxies were vicious in their character assaults.Thomas Jefferson, who had an affinity for French culture and language, was criticized as virulently pro-French as well as an atheist. John Adams was assaulted as an eli tist, an advocate for an Americanmonarchy, and personally cantankerous.The election was close but John Adams was the victor with 71 electoral votes. In fact, John Adams, asPresident of the Senate under his vice-presidential duties, Adams cast the deciding vote in the Senate forhis own election. Thomas Jefferson was a close second with 68 electoral votes and, under the pre-12th

Amendment rules, Jefferson was the new vice president. This difficult arrangement guaranteed at leastsome gridlock over the four years of the term and led to the creation of the 12th amendment to preventsuch an event from happening again.

From the New York Packet.

Friday, March 14, 1788.

To the People of the State of New York:


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The mode of appointment of the Chief Magistrate of the United States is almost the only part of the

system, of any consequence, which has escaped without severe censure, or which has received the

slightest mark of approbation from its opponents. The most plausible of these, who has appeared in

print, has even deigned to admit that the election of the President is pretty well guarded.1 I venture

somewhat further, and hesitate not to affirm, that if the manner of it be not perfect, it is at least

excellent.

It unites in an eminent degree all the advantages, the union of which was to be wished for.

It was desirable that the sense of the people should operate in the choice of the person to whom so

important a trust was to be confided. This end will be answered by committing the right of making it,

not to any preestablished body, but to men chosen by the people for the special purpose, and at the

particular conjuncture.

It was equally desirable, that the immediate election should be made by men most capable of analyzing

the qualities adapted to the station, and acting under circumstances favorable to deliberation, and to a

judicious combination of all the reasons and inducements which were proper to govern their choice. A

small number of persons, selected by their fellow-citizens from the general mass, will be most likely to

possess the information and discernment requisite to such complicated investigations.

It was also peculiarly desirable to afford as little opportunity as possible to tumult and disorder. This evil

was not least to be dreaded in the election of a magistrate, who was to have so important an agency in

the administration of the government as the President of the United States. But the precautions which

have been so happily concerted in the system under consideration, promise an effectual security against

this mischief. The choice ofseveral, to form an intermediate body of electors, will be much less apt to

convulse the community with any extraordinary or violent movements, than the choice ofone who was

himself to be the final object of the public wishes. And as the electors, chosen in each State, are to

assemble and vote in the State in which they are chosen, this detached and divided situation will expose

them much less to heats and ferments, which might be communicated from them to the people, than if

they were all to be convened at one time, in one place.

Nothing was more to be desired than that every practicable obstacle should be opposed to cabal,

intrigue, and corruption. These most deadly adversaries of republican government might naturally have

been expected to make their approaches from more than one querter, but chiefly from the desire in

foreign powers to gain an improper ascendant in our councils. How could they better gratify this, than

by raising a creature of their own to the chief magistracy of the Union? But the convention have

guarded against all danger of this sort, with the most provident and judicious attention. They have not

made the appointment of the President to depend on any preexisting bodies of men, who might be

tampered with beforehand to prostitute their votes; but they have referred it in the first instance to an

immediate act of the people of America, to be exerted in the choice of persons for the temporary and

sole purpose of making the appointment. And they have excluded from eligibility to this trust, all those

who from situation might be suspected of too great devotion to the President in office.

No senator,

representative, or other person holding a place of trust or profit under the United States, can be of the

numbers of the electors. Thus without corrupting the body of the people, the immediate agents in the

election will at least enter upon the task free from any sinister bias. Their transient existence, and their

detached situation, already taken notice of, afford a satisfactory prospect of their continuing so, to the

conclusion of it. The business of corruption, when it is to embrace so considerable a number of men,

requires time as well as means. Nor would it be found easy suddenly to embark them, dispersed as they

would be over thirteen States, in any combinations founded upon motives, which though they could not


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properly be denominated corrupt, might yet be of a nature to mislead them from their duty.

Another and no less important desideratum was, that the Executive should be independent for his

continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his

duty to his complaisance for those whose favor was necessary to the duration of his official

consequence. This advantage will also be secured, by making his re-election to depend on a special body

of representatives, deputed by the society for the single purpose of making the important choice.

All these advantages will happily combine in the plan devised by the convention; which is, that the

people of each State shall choose a number of persons as electors, equal to the number of senators and

representatives of such State in the national government, who shall assemble within the State, and vote

for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the

national government, and the person who may happen to have a majority of the whole number of votes

will be the President. But as a majority of the votes might not always happen to centre in one man, and

as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a

contingency, the House of Representatives shall select out of the candidates who shall have the five

highest number of votes, the man who in their opinion may be best qualified for the office.

The process of election affords a moral certainty, that the office of President will never fall to the lot of

any man who is not in an eminent degree endowed with the requisite qualifications. Talents for low

intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single

State; but it will require other talents, and a different kind of merit, to establish him in the esteem and

confidence of the whole Union, or of so considerable a portion of it as would be necessary to make him

a successful candidate for the distinguished office of President of the United States. It will not be too

strong to say, that there will be a constant probability of seeing the station filled by characters pre-

eminent for ability and virtue. And this will be thought no inconsiderable recommendation of the

Constitution, by those who are able to estimate the share which the executive in every government

must necessarily have in its good or ill administration. Though we cannot acquiesce in the political

heresy of the poet who says: `For forms of government let fools contest That which is bestadministered is best,'' yet we may safely pronounce, that the true test of a good government is its

aptitude and tendency to produce a good administration.

The Vice-President is to be chosen in the same manner with the President; with this difference, that the

Senate is to do, in respect to the former, what is to be done by the House of Representatives, in respect

to the latter.

The appointment of an extraordinary person, as Vice-President, has been objected to as superfluous, if

not mischievous. It has been alleged, that it would have been preferable to have authorized the Senate

to elect out of their own body an officer answering that description. But two considerations seem to

justify the ideas of the convention in this respect. One is, that to secure at all times the possibility of a

definite resolution of the body, it is necessary that the President should have only a casting vote.

And to

take the senator of any State from his seat as senator, to place him in that of President of the Senate,

would be to exchange, in regard to the State from which he came, a constant for a contingent vote. The

other consideration is, that as the Vice-President may occasionally become a substitute for the

President, in the supreme executive magistracy, all the reasons which recommend the mode of election

prescribed for the one, apply with great if not with equal force to the manner of appointing the other. It

is remarkable that in this, as in most other instances, the objection which is made would lie against the

constitution of this State. We have a Lieutenant-Governor, chosen by the people at large, who presides


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in the Senate, and is the constitutional substitute for the Governor, in casualties similar to those which

would authorize the Vice-President to exercise the authorities and discharge the duties of the President.

PUBLIUS.

1 Vide FederalFarmer.

Memorandum

Overview of Electoral College Procedure and the Role of CongressNovember 17, 2000

Stanley BachSenior Specialist in the Legislative Process, Government and Finance Division

Jack MaskellLegislative Attorney, American Law Division

This memorandum responds to numerous congressional requests for

information on the presidential electoral vote process and the role ofCongress in that process. The memorandum identifies the primary stages,

requirements, and procedures for casting and counting electoral votes forthe election of the President and Vice President. This process in most cases

has been uneventful and non-controversial. In the context of the 2000 presidential election,however, there has been speculation about a number of possibilities for which there may be no

judicial or congressional precedent.

Because of the absence of specific and persuasive authority on some issues, and in light of the

time frame in which this information has been requested to be presented, this memorandumattempts to at least identify and present some of the possible issues and questions which havebeen raised, even when not necessarily resolving them by reference to authoritative source

material or decisions. The topics presented are arranged in the approximate order of theiroccurrence.

Much of what follows in this memorandum is based on the United States Constitution and on a

federal law enacted in 1887 and amended in 1948, now codified in Title 3 of the United StatesCode. Reference is also made to congressional precedent and practice. Early congressional

precedents on the counting of electoral votes, which may be found inHinds' and Cannon'sPrecedents of the House of Representatives, are sometimes inconsistent with each other and with

more recent practice. This record, coupled with the events of 1877, provided the impetus forcodifying procedure in the 1887 law. Precedents which predate the 1887 Act may be primarily of

historical significance, particularly to the extent that they are inconsistent with expressprovisions of the 1887 Act, as amended.

Appointment of Electors: Election Day. The United States Constitution provides that each

state "shall appoint" electors for President and Vice President in the manner directed by its statelegislature (Art. II, Sec 1, cl. 2), on the day which may be determined by Congress (Article II,

Electoral Law Links:HomeThe ConstitutionU.S. Code (3 U.S.C.)Precedents


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Sec. 1, cl. 3). Congress has determined in Federal law that the "electors of President and VicePresident shall be appointed, in each State" on election day, that is, the "Tuesday next after the

first Monday in November" every fourth year (this year, on November 7, 2000). (3 U.S.C. 1).

Final State Determination of Election Contests and Controversies. Congress has, since 1887,

sought to place the responsibility for resolving election contests and challenges to presidentialelections in a state upon that state itself. Federal law provides that if a state, under its establishedstatutory procedure, has made a "final determination of any controversy or contest" relative to

the presidential election in that state, and if that determination is completed under this procedureat least six days before the electors are to meet to vote (six days prior to December 18 is

December 12, 2000), such determination is to be considered "conclusive" as to which electorswere appointed on election day (3 U.S.C. 5).

Certification by the Governor. The Governor of a state is required by federal law "as soon as

practicable" after the "final ascertainment" of the appointment of the electors, or "as soon aspracticable" after the "final determination of any controversy or contest" concerning such

election under its statutory procedure for election contests, to send to the Archivist of the UnitedStates by registered mail and under state seal, "a certificate of such ascertainment of the electors

appointed," including the names and numbers of votes for each person for whose appointment aselector any votes were given (3 U.S.C. 6).

Duplicate Certificates to Electors. On or before December 18, 2000, the Governor of the state

is required to deliver to the electors of the state six duplicate originals of the certificate sent tothe Archivist of the United States under state seal. (3 U.S.C. 6)

Meeting of Electors to Cast Votes for President and Vice President. The electors of a state

are to meet at the place designated by that state, on the first Monday after the second Wednesdayin December (December 18, 2000), to cast their votes for President and Vice President of the

United States. (United States Constitution, Amendment 12; 3 U.S.C. 7,8).

Electors' Certifications of Votes. At the time of the meeting of the electors, after their votes,the electors are to make and sign certificates of their votes containing two distinct lists, one being

the votes for President and the other the votes for Vice President; they are instructed to attach tothese lists the certificate furnished to them by the governor; to seal those certificates and to

certify on them that these are all of the votes for President and Vice President; and then to sendone certificate to the President of the Senate, and two certificates to the secretary of state of their

state (one to be held subject to the order of the President of the Senate). On the day after theirmeeting (December 19, 2000), the electors are to forward by registered mail two of the

certificates to the Archivist of the United States (one to be held subject to the order of thePresident of the Senate), and one to the judge in the district where the electors have assembled (3

U.S.C. 9,10,11).

Congressional Demand for Certificates. If no certificate of vote or lists have been received bythe President of the Senate or the Archivist from electors by the fourth Wednesday in December

(December 27, 2000), then the President of the Senate (or the Archivist if the President of theSenate is not available) shall request the secretary of state of the state to immediately forward the


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certificates and lists lodged with the secretary of state, and shall send a special messenger to thejudge of the district to transmit the lists lodged with that judge (3 U.S.C. 12,13).

Transmittal of Governors' Certificates from Archivist to Congress. At the first meeting of

the Congress, January 3, 2001, the Archivist of the United States shall transmit to the two houses

every certificate received from the Governors of the states (3 U.S.C. 6).

Date for Counting Electoral Votes. The date for counting the electoral votes is fixed by law. At

present, that date is January 6 following each presidential election (3 U.S.C. 15). In 2001,January 6 falls on a Saturday. On October 24, 2000, the Senate passed S.J.Res. 55, changing the

date to January 5, 2001 (and reiterating some of the provisions of law discussed below). As ofthe date of this memorandum, the joint resolution awaits House and presidential action.

Venue for Counting Electoral Votes. The electoral votes are counted at a joint session of the

Senate and the House of Representatives, meeting in the House chamber. (The United StatesCode refers to the event as a joint meeting; it also has been characterized in the Congressional

Recordas a joint convention.) The joint session convenes at 1:00 p.m. on that day. The Presidentof the Senate is the presiding officer (3 U.S.C. 15). The President pro tempore of the Senate

has presided in the absence of the President of the Senate (Deschler's Precedents of the UnitedStates House of Representatives [hereafterDeschler's Precedents], v. 3, Ch. 10, 2.5, recording

that, in January 1969, Vice President Humphrey "declined to preside over the joint session tocount the electoral votes.").

Opening of the Votes for Each State and the District of Columbia. Under 3 U.S.C. 15, the

President of the Senate opens and presents the certificates of the electoral votes of the states andthe District of Columbia in alphabetical order. (As discussed above, under 3 U.S.C. 9-10, the

electors in each state, having voted, are to sign, seal, and certify the certificates. Under 11 ofthe same title, they are to mail one such certificate to the President of the Senate and mail two

others to the Archivist of the United States.)

Reading of the Votes by House and Senate Tellers. The certificate or equivalent paper fromeach state and the District of Columbia then is to be read by tellers previously appointed from

among the membership of the House and Senate. Before the joint session convenes, each houseappoints two of its members to be the tellers.

Counting the Votes and Announcing the Result. After the votes of each state and the District

of Columbia have been read, the tellers record and count them. When this process has beencompleted, the President of the Senate announces whether any candidates have received the

required majority votes for President and Vice President. If so, that "announcement shall bedeemed a sufficient declaration of the persons, if any, elected President and Vice President of the

United States" (3 U.S.C. 15).

Expediting the Process of Opening and Reading Votes. The joint session may agree toexpedite this process when no controversy is anticipated. In the 1997 joint meeting, for example,

the Vice President announced: "Under well established precedents, unless a motion shall bemade in any case, the reading of the formal portions of the certificates will be dispensed with.


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After ascertainment has been had that the certificates are authentic and correct in form, the tellerswill count and make a list of the votes cast by the electors of the several States." (Congressional

Record[daily edition], January 9, 1997, p. H77)

The Vice President proceeded to open the certificates in alphabetical order and passed to the

tellers the certificates showing the votes of the electors in each state and the District ofColumbia. In each case, the tellers then read, counted, and announced the result for each stateand the District of Columbia. According to the Congressional Record, the joint session

consumed precisely 24 minutes.

The Majority Required for Election. The 12th Amendment requires the winning candidate toreceive "a majority of the whole number of Electors appointed." That number normally becomes

the same as a majority of the number of electoral votes counted by the tellers. The one exceptionwe have identified occurred in 1873 when the Vice President announced that President Grant had

received "a majority of the whole number of electoral votes," even though the Vice Presidentalso indicated that not all of those electoral votes had been counted. In that case, the two houses,

under procedures similar to those described below, had decided not to count the electoral votesfrom Arkansas and Louisiana. Nonetheless, the number of electoral votes allocated to Arkansas

and Louisiana evidently were included in "the whole number of electoral votes" for purposes ofdetermining whether President Grant had received the majority required for election.

(Congressional Globe, February 12, 1873, pp. 1305-1306) It should be noted that PresidentGrant also won a majority of the electoral votes counted. If electoral votes from a state or the

District of Columbia were not available to be counted during the joint session (and if thequestion were raised in a timely fashion), the joint session might be called upon to address the

effect of this situation on what number of votes would constitute the "majority of the wholenumber of Electors appointed." In 1865, only two of the three Nevada electors cast their electoral

votes. In the joint session, only two Nevada votes were counted and included in the "wholenumber of electoral votes." 69 Congressional Globe 668-669, 38th Cong., 2d Sess. (February 8,

1865). We are not aware of instances in which this issue has become a source of contention.

Procedures During Joint Session. Title 3 includes provisions governing the conduct of the jointsession. The seating of Senators, Representatives, and officials is governed by 16. Under 18,

the President of the Senate is to preserve order. This authority may encompass the authority todecide questions of order, but the statute is not explicit on this point. Also, no debate is to be

allowed and no question is to be "put by the presiding officer except to either House on a motionto withdraw." (The statute provides for the Senate to withdraw automatically under

circumstances discussed below. However, the statute makes no other explicit reference to amotion to withdraw.)

Continuity of the Joint Session. Section 16 is intended to ensure that the joint session conducts

and completes its business expeditiously. As just noted, 18 prohibits debate and almost allquestions. Section 16 provides that the joint session is to continue until the count is completed

and the result announced, and limits recesses if the process of counting the votes and announcingthe results becomes time-consuming.

Objecting to the Counting of One or More Electoral Votes. 3 U.S.C. 15 includes a


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procedure for making and acting on objections to the counting of one or more of the electoralvotes from a state or the District of Columbia. When the certificate or equivalent paper from

each state (or the District of Columbia) is read, "the President of the Senate shall call forobjections, if any." Any such objection must be presented in writing and must be signed by at

least one Senator and one Representative. The objection "shall state clearly and concisely, and

without argument, the ground thereof...." When an objection is received, each house is to meetand consider it separately. The statute states that "[n]o votes or papers from any other State shallbe acted upon until the objections previously made to the votes or papers from any State shall

have been finally disposed of." However, in 1873, before enactment of the law now in force, thejoint session agreed, without objection and for reasons of convenience, to entertain objections

with regard to two or more states before the two houses met separately to consider any of them.

Disposing of Objections. The joint session does not act on any objections that are made. Instead,the joint session is suspended while each house meets separately to debate the objection and vote

whether, based on the objection, to count the vote or votes in question. Both houses must voteseparately to agree to the objection. (This is the form in which the question was put in 1969;

Deschler's Precedents, v. 3, Ch. 10, 3.6.) Otherwise, the objection falls and the vote or votesare counted. (3 U.S.C. 15, provides that "the two Houses concurrently may reject the vote or

votes ....) These procedures have been invoked once since enactment of the 1887 law. In 1969, aRepresentative and a Senator objected in writing to counting the vote of an elector from North

Carolina who had cast his vote for George Wallace and Curtis LeMay. Both houses, meeting andvoting separately, rejected the objection, so when the joint session resumed, the challenged

electoral vote was counted as cast. (This episode is discussed inDeschler's Precedents, v. 3, Ch.10, 3.6.) In that instance the elector whose vote was challenged was from a state that did not by

law "bind" its electors to vote only for the candidates to whom they are pledged. The instance ofan elector voting for a different candidate (the so-called "faithless elector"), from a state which

does, in fact, bind by law the elector to vote for the candidate to whom listed or pledged (seeRayv. Blair, 343 U.S. 214 (1952) in which the Court upheld the permissibility of such state

limitations but did not address their enforceability), has not as yet been expressly addressed bythe Congress or the courts.

Procedures for Considering Objections. 3 U.S.C. 17 lays out procedures for each house to

follow in debating and voting on an objection. (As these procedures affect either house, however,they presumably are rule-making provisions of law which that house can decide unilaterally to

alter.) These procedures limit debate on the objection to not more than two hours, during whicheach member may speak only once and for not more than five minutes. Then "it shall be the duty

of the presiding officer of each House to put the main question without further debate." Underthis provision, the presiding officer in each house held in 1969 that a motion to table the

objection was not in order (Deschler's Precedents, v. 3, Ch. 10, 3.7). On the other hand, theSenate agreed, by unanimous consent, during the same proceeding to a different way in which

the time for debate was to be controlled and allocated (Deschler's Precedents , v. 3, Ch. 10, 3.8).

Basis for Objections. The general grounds for an objection to the counting of an electoral vote

or votes would appear from the federal statute and from historical sources to be that such votewas not "regularly given" by an elector, and/or that the elector was not "lawfully certified"


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according to state statutory procedures. The statutory provision first states in the negative that"no electoral vote ... regularly given by electors whose appointment has been lawfully certified ...

from which but one return has been received shall be rejected" (3 U.S.C. 15), and thenreiterates for clarity (see Conference Reporton 1887 legislation, 18 Congressional Record668,

49th Cong., 2d Sess., January 14, 1887) that both houses concurrently may reject a vote when

not "so regularly given" by electors "so certified." 3 U.S.C. 15. It should be noted that the word"lawfully" was expressly inserted by the House in the Senate legislation (S. 9, 49th Cong.) beforethe word "certified" ( Conference Report, supra, 18 Congressional Recordat 668). Such addition

arguably provides an indication that Congress thought it might, as a grounds for an objection,question and look into the lawfulness of the certification under state law. While the first

objection of "regularly given" may, in practice, subsume the latter (as a vote may arguably beother than "regularly given" if it were given by one who was not "lawfully certified"), the two

objections are not necessarily the same. In the case of the socalled "faithless elector" in 1969,described above, the elector was apparently "lawfully certified" by the state, but the objection

raised was that the vote was not "regularly given" by such elector.

Receipt of Two Certificates from the Same State. Because of the recent historical experienceprior to 1887, Congress was particularly concerned in the statute of 1887 with the case of two

lists of electors and votes being presented to Congress from the same state. There appear to bethree different contingencies provided for in the statute for two lists being presented. In the first

instance, there would be two lists proffered, but the assumption presented in the law is that onlyone list would be from electors who were determined to be appointed pursuant to the state

election contest statute (as provided for in 3 U.S.C. 5), and then in such case, only thoseelectors should be counted. In the second case, when there are two lists proffered as being from

two differentstate authorities who arguably made determinations provided for under 3 U.S.C. 5(a state statutory election contest determining, at least 6 days prior to December 18, the winner of

the state presidential election), the question of which state authority is "the lawful tribunal ofsuch State" to make the decision (and thus the acceptance of those electors' votes), shall be done

only upon the concurrent agreement ofboth houses "supported by the decision of such State soauthorized by its law...." In the third instance, if there is no determination by a state authority of

the question of which slate was lawfully appointed, then the two houses must agree concurrentlyto accept the votes of one set of electors; but the two houses may also concurrently agree not to

accept the votes of electors from that state.

When the two houses disagree, then the statute states that the votes of the electors whoseappointment was certified by the Governor of the state shall be counted. It is not precisely clear

whether this contingency for split votes in the House and Senate applies only to the last twoscenarios, that is, only (a) where the House and Senate cannot decide between two

determinations allegedly made under the state contest law, or (b) where no determinations havebeen made under state law; or rather, whether the contingency applies even where there is only

one determination under a state election contest law and procedure. This section of the statute,however, through its structure and its relationship to 5 (and to give effect to 5), although it is

not free from doubt, seems to indicate that when there is only one determination by the statemade in a timely fashion under the state's election contest law and procedures (even when there

are two or more lists or slates of electors presented before the Congress), then the Congress shallaccept that state determination (3 U.S.C. 15) as "conclusive" (3 U.S.C. 5), and that the "split"


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decision procedure as being decided in favor of the choice certified by the governor, may nothave been intended to be applicable to that first clause in the statute where only one slate or

group has been found to have been determined, in a timely fashion, to be the electors through thestate's determination procedures for election contests and controversies.Hinds' Precedents of the

House of Representatives suggests that when a state has settled the matter "in accordance with a

law of that state six days before the time for the meeting of electors," then a controversy over theappointment of electors in that state "shall not be a cause of question in the counting of theelectoral vote by Congress." (Hinds' Precedents, vol 3, 1914, referring only to the 1887

statute.) It should be noted thatHinds cites no precedent or ruling, but merely paraphrases thestatute, and it seems likely that this issue of the lawfulness of the determination and certification

by a state, could be raised and dealt with in the joint session.

Precedent subsequent to the statute's original enactment in 1887 has been sparse. There appearsonly to have been one example, in 1961, when the Governor of the State of Hawaii first certified

the electors of Vice President Nixon as having been appointed, and then, due to a subsequentrecount which determined that Senator Kennedy had won the Hawaii vote, certified Senator

Kennedy as the winner. Both slates of electors had met on the prescribed day in December, casttheir votes for President and Vice President, and transmitted them according to the federal

statute. This was the case even though the recount was apparently not completed until a laterdate, that is, not until December 28 (Facts on File, Weekly World News Digest, Vol. XX, No.

1052, p. 469 (December 2228, 1960)). The presiding officer, that is, the President of the Senate,Vice President Nixon, suggested "without the intent of establishing a precedent" that the latter

and more recent certification of Senator Kennedy be accepted so as "not to delay the furthercount of electoral votes." This was agreed to by unanimous consent. (See discussion in

Deschler's Precedents, at vol.3, Ch. 10, 3.5, pp. 1213).

Composition of the Joint Session. Unless the law is changed to provide for the joint session totake place before January 3, 2001, the members of the 107th Congress will participate in the joint

session and in any separate meetings of the House and Senate that are required to dispose ofobjections. Unless the conclusion of such a separate meeting is delayed beyond January 20,

2001, the date for inaugurating the new President and Vice President, the sitting Vice Presidentwould remain the President of the Senate during any separate meeting of the Senate.

How did the terms "Elector" and "Electoral College" come into usage?

The term "electoral college" does not appear in the Constitution. Article II of the Constitutionand the 12th Amendment refer to "electors," but not to the "electoral college." In the Federalist

Papers (No. 68), Alexander Hamilton refers to the process of selecting the Executive, and refersto "the people of each State (who) shall choose a number of persons as electors," but he does not

use the term "electoral college."

The founders appropriated the concept of electors from the Holy Roman Empire (962 - 1806).An elector was one of a number of princes of the various German states within the Holy Roman

Empire who had a right to participate in the election of the German king (who generally was

crowned as emperor). The term "college" (from the Latin collegium), refers to a body of personsthat act as a unit, as in the college of cardinals who advise the Pope and vote in papal elections.

In the early 1800's, the term "electoral college" came into general usage as the unofficialdesignation for the group of citizens selected to cast votes for President and Vice President. It


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was first written into Federal law in 1845, and today the term appears in 3 U.S.C. section 4, inthe section heading and in the text as "college of electors."

How does the Electoral College elect the President?

View a summary of the Electoral College process and key dates for election year 2008.

y For a complete explanation, please reviewA Procedural Guide to the Electoral College

Key Electoral College Dates and Events

y November 4, 2008 - General Election: The voters in each State choose electors to serve in the Electoral

College. As soon as election results are final, the States prepare seven or nine original "Certificates of

Ascertainment" of the electors chosen, and send one original along with two certified copies (or three

originals, if nine were prepared) to the Archivist of the United States.

y December 15, 2008 - Meeting of Electors: The electors in each State meet to select the President and

Vice President of the United States. The electors record their votes on six "Certificates of Vote," which are

paired with the six remaining original "Certificates of Ascertainment." The electors sign, seal and certify the

packages of electoral votes and immediately send them to the President of the Senate, the Archivist of the

United States and other designated Federal and State officials.

y December 24, 2008 - Deadline for Receipt of Electoral Votes: The President of the Senate, the Archivist

of the United States, and other designated Federal and State officials must have the electoral votes in hand.

y January 8, 2009 - Counting Electoral Votes in Congress: Public Law 110-430 changed the date of the

electoral vote in Congress in 2009 from January 6 to January 8. This date change is effective only for the

2008 presidential election.

The Congress meets in joint session to count the electoral votes (unless Congress passes a law to change

the date).

How does the Electoral College process work in my State?

For information on the electoral process in your State, you may wish to contact the Secretary ofState of your State.

For example, the Secretary of the Commonwealth of Massachusetts has a web page devoted to

the electoral college: All About the Electoral College in Massachusetts.

To find your Secretary of State, go to the web site for the National Association of Secretaries ofState: http://www.nass.org.

Can citizens in U.S. Territories vote for President?

No, the Electoral College system does not provide for residents of U.S. Territories, such asPuerto Rico, Guam, the U.S. Virgin Islands and American Samoa to vote for President. Unless

citizens in U.S. Territories have official residency (domicile) in a U.S. State or the District of


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Columbia (and vote by absentee ballot or travel to their State to vote), they cannot vote in thePresidential election. Note that prior to the adoption of the 23rd Amendment, DC residents could

not vote in the Presidential election.

The political parties may authorize voters in primary elections in Territories to select delegates torepresent them at the political party conventions. But that process does not affect the Electoral

College system.

Is my vote for President and Vice President meaningful in the Electoral College system?

Yes, within your state, your vote has a great deal of significance.

Under the Electoral College system, we do not elect the President and Vice President through adirect nation-wide vote. We select electors, who pledge their electoral vote to a specific

candidate.

In December, the electors of each state meet to vote for President and Vice President. ThePresidential election is decided by the combined results of the 51 (the 50 states and the District

of Columbia) state elections. It is possible that an elector could ignore the results of the popularvote, but that occurs very rarely.

Your vote helps decide which candidate receives your state's electoral votes.

Why do we still have the Electoral College?

The Electoral College process is part of the original design of the U.S. Constitution. It would benecessary to pass a Constitutional amendment to change this system.

Note that the 12th Amendment, the expansion of voting rights, and the use of the popular vote inthe States as the vehicle for selecting electors has substantially changed the process.

Many different proposals to alter the Presidential election process have been offered over theyears, such as direct nation-wide election by the People, but none have been passed by Congress

and sent to the States for ratification. Under the most common method for amending the

Constitution, an amendment must be proposed by a two-thirds majority in both houses ofCongress and ratified by three-fourths of the States.

What Federal laws govern the Electoral College system?

y Article II, Section 1 of the U.S. Constitution

y 12th Amendment to the Constitution

y United States Code, Title 3, Chapter 1 (3 U.S.C. 1 - 21)

For more information, see:

y A Procedural Guide to the Electoral College


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What proposals have been made to change the Electoral College system?

Reference sources indicate that over the past 200 years, over 700 proposals have been introducedin Congress to reform or eliminate the Electoral College. There have been more proposals forConstitutional amendments on changing the Electoral College than on any other subject. The

American Bar Association has criticized the Electoral College as "archaic" and "ambiguous" and

its polling showed 69 percent of lawyers favored abolishing it in 1987. But surveys of politicalscientists have supported continuation of the Electoral College. Public opinion polls have shownAmericans favored abolishing it by majorities of 58 percent in 1967; 81 percent in 1968; and 75

percent in 1981.

Opinions on the viability of the Electoral College system may be affected by attitudes towardthird parties. Third parties have not fared well in the Electoral College system. Candidates with

regional appeal such as Governor Thurmond in 1948 and Governor Wallace in 1968 won blocsof electoral votes in the South, which may have affected the outcome, but did not come close to

seriously challenging the major party winner. The last third party or splinter party candidate tomake a strong showing was Theodore Roosevelt in 1912 (Progressive, also known as the Bull

Moose Party). He finished a distant second in electoral and popular votes (taking 88 of the 266

electoral votes needed to win). Although Ross Perot won 19 percent of the popular votenationwide in 1992, he did not win any electoral votes since he was not particularly strong in any

one or several states. Any candidate who wins a majority or plurality of the popular vote has a

good chance of winning in the Electoral College, but there are no guarantees (see the results of1824, 1876, 1888 and 2000 elections).

What happens if no presidential candidate gets 270 electoral votes?

If no candidate receives a majority of electoral votes, the House of Representatives elects thePresident from the 3 Presidential candidates who received the most electoral votes. Each State

delegation has one vote. The Senate would elect the Vice President from the 2 Vice Presidential

candidates with the most electoral votes. Each Senator would cast one vote for Vice President. Ifthe House of Representatives fails to elect a President by Inauguration Day, the Vice-President

Elect serves as acting President until the deadlock is resolved in the House.

For more information see:

y What would happen if two candidates tied in a State's popular vote, or there was a dispute as to the winner?

y What is the difference between the winner-takes-all rule and proportional voting, and which States follow

which rule?

y How is it possible for the electoral vote to produce a different result than the nation-wide popular vote?

y History of the Electoral College on the Federal Election Commission's web site.

What impact does a candidate's concession speech have on the Electoral College process?


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None. A candidate's concession speech does not impact the States' duties and responsibilitiesrelated to the Electoral College system. On December 15, 2008, the electors will meet in each

State to cast their ballots.

How do the 538 electoral votes get divided among the States?

The number of electoral votes allotted to each State corresponds to the number of

Representatives and Senators that each State sends to Congress. The distribution of electoralvotes among the States can vary every 10 years depending on the results of the United States

Census.

One of the primary functions of the Census is to reapportion the 435 members of the House ofRepresentatives among the States, based on the current population. The reapportionment of the

House determines the division of electoral votes among the States. In the Electoral College, eachState gets one electoral vote for each of its Representatives in the House, and one electoral vote

for each of its two Senators.

Thus, every state has at least 3 electoral votes, because the Constitution grants each State two

Senators and at least one Representative. In addition to the 535 electoral votes divided among theStates, the District of Columbia has three electoral votes because the 23rd Amendment granted it

the same number of votes as the least populated State.

If a State gains or loses a Congressional district, it will also gain or lose an electoral vote. As aresult of the Census conducted in 2000, the number of electoral votes allotted to certain States

changed for the 2004 election. See, Allocation of Electoral Votes based on the 1990 Census andAllocation of Electoral Votes based on the 2000 Census.

There are 538 members of the Electoral College. How could that number change without

amending the Constitution?

The number of electoral votes is set at 538, based on 435 members of the House ofRepresentatives and 100 members of the Senate, plus 3 electoral votes for the District of

Columbia under the 23rd Amendment. The Electoral College could become larger if a new Statewere admitted into the union (adding two new Senators and one or more Representatives until

the next redistricting), or if the House of Representatives expanded. The size of the House is setby law, not by the Constitution (2 U.S.C. 2).

What is the difference between the winner-takes-all rule and proportional voting, and

which States follow which rule?

There are 48 States that have a winner-takes-all rule for the Electoral College. In these States,

whichever candidate receives a majority of the vote, or a plurality of the popular vote (less than50 percent but more than any other candidate) takes all of the State's electoral votes.

Only two States, Nebraska and Maine, do not follow the winner-takes-all rule. In those States,there could be a split of electoral votes among candidates through the State's system forproportional allocation of votes.For example, Maine has four electoral votes and two

Congressional districts. It awards one electoral vote per Congressional district and two by thestate-wide, "at-large" vote. It is possible for Candidate A to win the first district and receive one


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electoral vote, Candidate B to win the second district and receive one electoral vote, andCandidate C, who finished a close second in both the first and second districts, to win the two at-

large electoral votes. Although this is a possible scenario, it has not actually occurred in recentelections.

How is it possible for the electoral vote to produce a different result than the nation-wide

popular vote?

It is important to remember that the President is not chosen by a nation-wide popular vote. The

electoral vote totals determine the winner, not the statistical plurality or majority a candidate mayhave in the nation-wide vote totals. Electoral votes are awarded on the basis of the popular vote

in each State.

Note that 48 out of the 50 States award electoral votes on a winner-takes-all basis (as does DC).For example, all 55 of California's electoral votes go to the winner of that State election, even if

the margin of victory is only 50.1 percent to 49.9 percent.

In a multi-candidate race where candidates have strong regional appeal, as in 1824, it is quite

possible that a candidate who collects the most votes on a nation-wide basis will not win theelectoral vote. In a two-candidate race, that is less likely to occur. But it did occur in the

Hayes/Tilden election of 1876 and the Harrison/Cleveland election of 1888 due to the statisticaldisparity between vote totals in individual State elections and the national vote totals. This also

occured in the 2000 presidential election, where George W. Bush received fewer popular votesthan Albert Gore Jr., but received a majority of electoral votes.

What would happen if two candidates tied in a State's popular vote, or there was a dispute

as to the winner?

A tie is a statistically remote possibility even in smaller States. But if a State's popular vote were

to come out as a tie between candidates, State law would govern as to what procedure would befollowed in breaking the tie. A tie would not be known of until late November or early

December, after a recount and after the Secretary of State had certified the election results.

Federal law would allow a State to hold a run-off election.

A very close finish could also result in a run-off election or legal action to decide the winner.Under Federal law (3 U.S.C. section 5), State law governs on this issue, and would be conclusive

in determining the selection of Electors. The law provides that if States have laws to determinecontroversies or contests as to the selection of Electors, those determinations must be completed

six days prior to the day the Electors meet.

What was the difference between Colorado's 2004 proposal to proportionally allocateelectoral votes and the current way that Nebraska and Maine proportionally allocate

electoral votes?

Both Maine and Nebraska allocate their electors by a district system. For example, Maine hasfour electoral votes. Two electors are selected on the basis of the statewide vote and two are

selected according to outcome of the vote in each of Maine's two Congressional districts.Nebraska's five electoral votes are distributed in the same manner: two based on the statewide

vote, and three based on the results in Congressional districts.


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Since these States have adopted a proportional system of allocating electoral votes, all the States'electoral votes have gone to only one of the Presidential candidates.

Colorado's 2004 initiative would have proportionally allocated electoral votes based on thepercentage of votes that each presidential candidate received. For example, if candidate A gets

55 percent of the vote and candidate B gets 45 percent, then candidate A gets 5 electoral votes

and candidate B gets 4 electoral votes. If candidate A gets 67 percent, then candidate A gets 6electoral votes and candidate B gets 3 electoral votes.

The initiative failed 65 percent to 35 percent. View official results from Colorado's 2004initiative on proportional allocation of its electoral votes.

For more information, see:

y What is the difference between the winner-takes-all rule and proportional voting, and which States follow

which rule?

y What would happen if two candidates tied in a State's popular vote, or there was a dispute as to the winner?

Who selects the Electors?

The process for selecting electors varies throughout the United States. Generally, the politicalparties nominate electors at their State party conventions or by a vote of the party's central

committee in each State. Electors are often selected to recognize their service and dedication to

their political party. They may be State elected officials, party leaders, or persons who have apersonal or political affiliation with the Presidential candidate. Then the voters in each State

choose the electors on the day of the general election. The electors' names may or may notappear on the ballot below the name of the candidates running for President, depending on the

procedure in each State.

What are the qualifications to be an elector?

The U.S. Constitution contains very few provisions relating to the qualifications of electors.Article II, section 1, clause 2 provides that no Senator or Representative, or Person holding an

Office of Trust or Profit under the United States, shall be appointed an Elector. As a historicalmatter, the 14th Amendment provides that State officials who have engaged in insurrection or

rebellion against the United States or given aid and comfort to its enemies are disqualified fromserving as electors. This prohibition relates to the post-Civil War era.

A State's certification of electors on its Certificates of Ascertainment is generally sufficient to

establish the qualifications of electors.

Must electors vote for the candidate who won their State's popular vote?

There is no Constitutional provision or Federal law that requires electors to vote according to theresults of the popular vote in their States. Some States, however, require electors to cast their

votes according to the popular vote. These pledges fall into two categorieselectors bound by

State law and those bound by pledges to political parties.


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Which States bind electors to popular vote results? Refer to Electors Bound by State Law andPledges to find out.

The Supreme Court has held that the Constitution does not require that electors be completelyfree to act as they choose and therefore, political parties may extract pledges from electors to

vote for the parties' nominees. Some State laws provide that so-called "faithless electors" may be

subject to fines or may be disqualified for casting an invalid vote and be replaced by a substituteelector. The Supreme Court has not specifically ruled on the question of whether pledges and

penalties for failure to vote as pledged may be enforced under the Constitution. No elector has

ever been prosecuted for failing to vote as pledged.

Today, it is rare for electors to disregard the popular vote by casting their electoral vote forsomeone other than their party's candidate. Electors generally hold a leadership position in their

party or were chosen to recognize years of loyal service to the party. Throughout our history as anation, more than 99 percent of electors have voted as pledged.

Where do I find the names of the 2004 Presidential electors??

y The 2004 Certificates of Ascertainment list the approved electors for the 2004 Presidential election.

Where do I find the names of the 2008 Presidential electors??

y After the November general election, the 2008 Certificates of Ascertainment will be posted online as quickly

as possible following their receipt by the Office of the Federal Register.

May I attend the meeting of my State's electors to watch them vote?

Generally, each State's electors vote at their respective State capitols. Each State determineswhether or not the voting is open to the public.

To find out if yourState's Meeting of Electors is open to the public and if so, what the process isto view the vote, contact your:

y Governor's Office

y Secretary of State

Is there an online source listing the names and voting records of presidential electors for all

previous presidential elections back to 1789?

We are not aware of a centralized, comprehensive source. This web site has the information forseveral recent past elections:

y 1992 Electoral College Votes



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This web site also offers links to State web sites relating to the Electoral College. Indiana and

Maryland have posted the names and voting records of their electors on their respective web

sites:

y Indiana Electors

y Maryland Electors

How many times has the Vice President been chosen by the U.S. Senate?

Once. In the Presidential election of 1836, the election for Vice President was decided in theSenate. Martin Van Buren's running mate, Richard M. Johnson, fell one vote short of a majority

in the Electoral College. Vice Presidential candidates Francis Granger and Johnson had a "run-

off" in the Senate under the 12th Amendment, where Johnson was elected 33 votes to 17.See also:

y Electoral Votes for President and Vice President

y Electoral College Box Scores

y Twelfth Amendment

Overview

Immigration has played an important role in American history, and the United States continues

to have the most open immigration policy in the world. Before the era of rapid communicationsand transportation, America encouraged relatively open immigration to settle its empty lands.

After certain states passed immigration laws following the Civil War, the Supreme Court in 1875

declared the regulation of immigration a federal responsibility. The Immigration Service was

established in 1891 to deal with the big increase in immigration which started in 1880.

From 1900 to 1920, nearly 24 million immigrants arrived during what is known as the GreatWave. The outbreak of World War I reduced immigration from Europe, but mass immigrationresumed upon the war's conclusion, and Congress responded with a new immigration policy:the national-origins quota system passed in 1921 and revised in 1924. Immigration was limitedby assigning each nationality a quota based on its representation in past U.S. census figures.

Also in 1924, Congress created the U.S. Border Patrol within the Immigration Service.There was very little immigration over the next 20 years, with net immigration actually droppingbelow zero for several years during the Depression. Immigration remained relatively low duringthe 20 years following World War II, because the 1920s national-origins system remained inplace after Congress re-codified and combined all previous immigration and naturalization lawinto the Immigration and Nationality Act of 1952. American agriculture continued to importseasonal labor from Mexico, as they had during the war, under a 1951 formal agreementbetween the United States and Mexico that made the Bracero Program permanent.


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In 1965, Congress replaced the national origins system with a preference system designed tounite immigrant families and attract skilled immigrants to the United States. This change tonational policy responded to changes in the sources of immigration since 1924. The majority ofapplicants for immigration visas now came from Asia and Latin America rather than Europe. Thepreference system continued to limit the number of immigration visas available each year,however, and Congress still responded to refugees with special legislation. Not until the

Refugee Act of 1980 did the United States have a general policy governing the admission ofrefugees.

In 1986, Congress passed the Immigration Reform and Control Act (IRCA). This legislation hadtwo major facets: amnesty and enforcement. IRCA provided amnesty to aliens who hadcompleted one of two stipulations: they had resided continually in the U.S. since January 1982or they had completed 90 days of agricultural work between May 1985 and May 1986. Theacceptance rate for amnesty applications was about 94 percent, eventually giving legal status toapproximately 3 million. It is estimated that one-fourth of the cases accepted were fraudulent. In2000, IRCA was extended through Late Amnesty, which allowed those fighting their originaldenial to reapply. As of June 2007, 15,000 Late Amnesty cases are still pending from IRCA. The1986 legislation also contained enforcement provisions to prevent future illegal entry. Theprovisions prohibited the hiring and harboring of illegal aliens, but few resources were allocatedto enforce these laws. Poor funding essentially tied the hands of enforcement officials. Thiscreated a lopsided grand compromise that fueled later generations of illegal aliens.

In 1990, Congress again reformed immigration statutes. The 1990 Immigration Act modified andexpanded the 1965 act; it significantly increased the total level of immigration to 700,000,increasing available visas 40 percent. The act retained family reunification as the major entrypath, while more than doubling employment-related immigration. The law also provided for theadmission of immigrants from "underrepresented" countries to increase the diversity of theimmigrant flow by creating a lottery system. The 1990 Act also mandated a study ofimmigration, later known as the Jordan Commission.

The U.S. Commission on Immigration Reform, named after its Chairwoman, former Rep. BarbraJordan, ran from 1990 to 1997. The Commission covered many facets of immigration policy, but

started from the perception that the credibility of immigration policy can be measured by asimple yardstick: people who should get in, do get in; people who should not get in, are kept out;and people who are judged deportable are required to leave. From there, in a series of fourreports, the commission looked at all aspects of immigration policy. In the first, it found thatenforcement was lax and needed improvement on the border and internally. For internalenforcement, it recommended that an automated employment verification system be created toenable workers to distinguish between legal and illegal workers. The second report discussedlegal immigration issues and suggested that immediate family members and skilled workersreceive priority. The third report covered refugee and asylum issues. Finally, the fourth reportreiterated the major points of the previous reports and the need for a new immigration policy.Few of these suggestions were implemented.

In 1996, Congress passed the Illegal Immigrant Reform and Immigrant Responsibility Act(IIRIRA). The act added to border controls by mandating the hiring of more Border Patrol andImmigration and Naturalization Service agents. Repercussions for entering the country illegallywere increased and a border fence was planned for San Diego. An automated employmentverification pilot program was created in the hopes of easing worksite enforcement. The Act alsoallowed state police officers to enforce immigration law using the 287(g) program. Although theIIRIRA boosted de jure enforcement, poor funding again hindered the actual enforcement of thelaws.


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Also during the 1990s, a series of four smaller amnesties were passed. The first, the Section245(i) amnesty, was passed in 1994 and pardoned approximately 578,000 illegal aliens, whowere each fined $1,000. This amnesty was later renewed in 1997 and again in 2000. Thesecond, the Nicaraguan Adjustment and Central American Relief Act (NACARA), was passed in1997 and gave legal status to approximately one million illegal aliens, mostly from Central

America, who had lived in the U.S. since 1995. In 1998, the Haitian Refugee Immigration and

Fairness Act (HRIFA) passed after it was argued that excluding Haitians from NACARA wasdiscriminatory. The most recent amnesty, passed in 2000, was the Legal Immigration FamilyEquity Act (LIFE). The LIFE Act was a mini-amnesty aimed at those illegal aliens who hoped tobecome green card holders through marriage, employment or other categories, but who werenot anywhere near approval yet, due to the long line of people ahead of them. It was sold as away around the growing processing backlogs that were the result of previous amnesties. Duringthe time of this legislation, from 1994 to 2000, millions of hopeful legal immigrants waited in lineoverseas.

The terrorist attack on September 11, 2001 affected perspectives on many issues, includingimmigration. A total of 20 foreign-born terrorists were involved, 19 of whom took part in theattack that caused 2,974 civilian deaths. The terrorists had entered the country on tourist orstudent visas. Four of them, however, had violated the terms of their visas and become illegalaliens. The attack exposed long-standing holes in our immigration system that included failuresat visa processing, internal enforcement, and information sharing.

In 2006 the issue of immigration reform was once again discussed in Congress, with the Houseof Representatives and the Senate producing their own, conflicting bills. In December of 2005,the House passed the Border Protection, Anti-terrorism, and Illegal Immigration Control Act of2005, which was sponsored by Rep. James Sensenbrenner (R-WI). The act was limited toenforcement and focused on both the border and the interior. In the Senate, the ComprehensiveImmigration Reform Act of 2006 (CIRA) was sponsored by Sen. Arlen Spector (R-PA) andpassed in May 2006. CIRA would have given amnesty to a majority of illegal aliens already inthe country as well as dramatically increased legal immigration. Although the bills passed theirrespective chambers, no compromise bill emerged.

In 2007, the Senate again attempted to pass amnesty legislation. The ComprehensiveImmigration Reform Act of 2007, which would have given amnesty to a large majority of illegalentrants in the country, significantly increased legal immigration and increased enforcement.The act, which had bipartisan support in the Senate, was widely unpopular with the Americanpublic. As the result of unprecedented public pressure, the bill failed to pass a cloture vote,essentially killing it.

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y Home >

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y Temporary Workers


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Temporary (Nonimmigrant) Workers

In order for you to come to the United States lawfully as a nonimmigrant to worktemporarily in the United States your prospective employer must generally file anonimmigrant petition on your behalf with USCIS

1. The main nonimmigrant

temporary worker classifications are listed in the table below. For more informationabout the filing requirements for particular nonimmigrant classifications, see the

specific classification links under "Temporary Workers" to the left.

Spouses and Children Seeking Dependent Nonimmigrant

Classification

Spouses and children who qualify for dependant nonimmigrant classification of atemporary worker and who are outside of the United States should apply directly at a

U.S. consulate for a visa.Spouses and children requesting a change of status or extension of stay in a dependent

nonimmigrant classification must file Form I-539, Application to Extend/ChangeNonimmigrant Status. Please see the Form I-539 instructions for further information

on filing procedures for this application.

Federal U.S. Tax Information

Aliens employed in the U.S. may have a U.S. Tax obligation. See the Internal RevenueService (IRS) for more information.

y Taxation of Non Resident Aliens

Temporary (Nonimmigrant)W

orker Classification

Nonimmigrant

Classification for a

Temporary

Worker

Description

Nonimmigrant

Classification for

Dependant Spouses

and Children of a

Temporary Worker

E-1Treaty traders and qualified

employees.E-1

3

E-2Treaty investors and qualified

employees.

E-23

E-2CLong-term foreign investors in the

CNMIE-2C

E-3Certain "specialty occupation"

professionals from Australia.E-3

3

H-1B Workers in a specialty occupation H-4


23/24

and the following sub-classifications:

H-1B1 - Free Trade Agreementworkers in a specialty occupation

from Chile and Singapore.H-1B2 - Specialty occupations

related to Department of DefenseCooperative Research and

Development projects or Co-production projects.

H-1B3 - Fashion models ofdistinguished merit and ability.

H-1C2

Registered nurses working in ahealth professional shortage area asdetermined by the U.S. Department

of Labor.

H-4

H-2ATemporary or seasonal agricultural

workers.H-4

H-2BTemporary non-agricultural

workers.H-4

H-3

Trainees other than medical or

academic. This classification alsoapplies to practical training in the

education of handicapped children.

H-4

I Representatives of foreign press,radio, film or other foreign

information media.

I

L-1AIntracompany transferees in

managerial or executive positions.L-2

3

L-1BIntracompany transferees in positions

utilizing specialized knowledge.L-2

3

O-1

Persons with extraordinary ability in

sciences, arts, education, business, or

athletics and motion picture or TVproduction.

O-3

O-2Persons accompanying solely to

assist an O-1 nonimmigrant.O-3

P-1A Internationally recognized athletes. P-4

P-1B Internationally recognized P-4


24/24

entertainers or members ofinternationally recognizedentertainment groups.

P-2

Individual performer or part of a

group entering to perform under areciprocal exchange program. P-4

P-3

Artists or entertainers, either anindividual or group, to perform,

teach, or coach under a program thatis culturally unique.

P-4

Q-1

Persons participating in aninternational cultural exchangeprogram for the purpose of providing

practical training, employment, and to

share the history, culture, andtraditions of the alien's homecountry.

Not Applicable4

R-1 Religious workers. R-2

TN

North American Free TradeAgreement (NAFTA) temporary

professionals from Mexico andCanada.

TD

1Only a few nonimmigrant classifications allow you to obtain permission work in

this country without an employer having first filed a petition on your behalf. Such

classifications include the nonimmigrant E-1, E-2, E-3 and TN classifications, as wellas, in certain instances, the F-1 and M-1 student and J-1 exchange visitor

classifications.2

The H-1C nonimmigrant classification expired on December 20, 2009.3 E and L dependent spouses may apply for employment authorization.4

Though the Immigration and Nationality Act (INA) does not provide a specificnonimmigrant classification for dependents of Q-1 nonimmigrants, this does not

preclude the spouse or child of a Q-1 from entering the U.S. in another nonimmigrantclassification.

Last updated: 12/20/2010

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