Congress Has Affirmed State Legislatures’ Unilateral Authority to Void Elections at Midnight after Election Day
THE LAW
While the United States Supreme Court – in an 8-0 decision (See
Chiafolo v. Washington, 591 U.S. ___, decided July 6, 2020) – reaffirmed a longstanding judicially recognized principle,
that Article 2;§1 of the Constitution grants plenary authority to the Legislatures of each State to determine the manner of appointing presidential electors, the
time by which electors must be appointed is controlled by the federal Congress, which has enacted a statute setting the exact day the electors for President and Vice President
shall be appointed.
The United States Constitution, also in Article 1;§2, states that
“Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes…” Two separate events are mentioned; 1) the time of choosing electors; 2) the Day the Electors vote. In this context, “chusing” means
appointing.
Congress has exercised this authority by enacting
3 United States Code §1-18:
§ 1. Time of appointing electors
The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.
The electors “shall be appointed, in each state”
on a very specific day. This special day is known throughout the land as Election Day. The statutory language is facially, and analytically,
unambiguous. The electors
shall be appointed on Election Day. “Shall be appointed” is a command to the States.
The exact day prescribed by this law upon which the electors shall be appointed is also unambiguous. Now, I ask you, were any electors appointed on November 3rd in any of the aforementioned states?
The answer is unequivocally negatory. No electors were appointed at the time prescribed by law.
Did Congress provide a means by which electors could be appointed if the states failed to appoint them on the day prescribed by law? Yes:
§ 2. Failure to make choice on prescribed day
Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such manner as the legislature of such State may direct.
3 USC §1 requires the State to appoint the electors on Election Day, while 3 USC §2 provides an extension of time to the State should it fail to appoint the electors before expiration of Election Day, which date is prescribed by law, this year falling on November 3rd. Whereas, 3 USC §7 prescribes the day the electors shall “give their votes” in December.
3 USC §1 and §2 work in tandem to create a safety net protecting against electoral mischief. The early legislators of this nation were all too familiar with the temptations of governing power. That is a protection of §1, which sets a uniform day, “in each State”, when electors
shall be appointed. If a State has enacted procedures controlling the popular vote for presidential electors, that State has until midnight on Election Day to appoint its electors.
Of course, Congress recognized that not every delay would be intentional. Innocent delays occur…sometimes. And this is where §2 comes in. Congress entrusted the
State Legislatures exclusively to determine the means by which the electors shall be chosen in the event said Legislatures have held an election –
and that election resulted in a failure of the State to appoint the electors before midnight on Election Day. This is exactly what happened in all of the aforesaid States on November 3rd, 2020.
The statute contemplates a previous election process in the States, whether by statute, State Constitution, Election Board, Secretary of State, and so on. All of those actors, if they were given authority to conduct an election, and to count votes thereafter, for however long it might take, derive authority to do so exclusively from their State legislatures.
Therefore, 3 USC §2 recognizes the efforts which would be made to hold an election, but, regardless, Congress unambiguously chose to set the time for appointing the electors by the States to expire at midnight on Election Day.
However, §2 also gives the State Legislatures an extension of time to appoint the electors, and it reiterates
the plenary authority granted by the Constitution for the Legislature to redetermine a new manner of appointing electors, after the initial attempt failed to meet the midnight deadline. If the State Legislature witnessed fraudulent conduct, or persistent irregularities by the Election Board, Secretary of State, Governor, or the State Courts, before, during, or after the election, and the State has failed to appoint the electors by midnight of Election Day,
§2 reiterates the State Legislature’s authority to thereafter unilaterally discard the whole sordid mess and choose a fresh manner of appointing the electors. And this discretion is plenary under the statute, just as it is under the Constitution.
In Bush v. Gore, 531 U.S. 98, 104 (2000), the Supreme Court affirmed again, the longstanding fundamental power of the State Legislatures to unilaterally take back the right to vote in any State election, even after the right has been exercised, so long as the Legislature’s action is applied equally throughout the state, so as not to violate equal protection:
“The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U.S. Const., Art. II, §1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the state legislature’s power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“ ‘[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated’ “) (quoting S. Rep. No. 395, 43d Congress., 1st Sets., 9 (1874)).” (Emphasis added.)
This Supreme Court precedent is paramount;
the State Legislature can take back the power to vote at any time, before, during, or after an election. And, as long as the State Legislatures cancel the votes of all voters, and not just some voters, it will be impossible for any voter to claim an equal protection violation.
The Constitution gives the federal Congress the authority to choose the time by which electors shall be appointed, while it gives the State legislatures absolute discretion over the manner in which the electors shall be appointed. If the State does not appoint the electors within the time prescribed by federal law, then the State would be usurping Congressional authority if it tried to appoint the electors anytime thereafter. Since the Constitution at Article 1;§2, mandates that “Each State Shall appoint” the electors, while it also grants exclusive authority to the Congress to set the time for choosing the electors, without 3 USC §2, there could be a Constitutional crisis.
Therefore, Congress, in its wisdom, statutorily extended the time for choosing electors to the State,
while also reiterating the exclusive Constitutional authority of its Legislature to determine the manner in which the electors shall be appointed. This Congressional extension of time to the State contemplates that the State Legislature will determine whether the previous election was fair, and will be sufficient, in the end, to appoint the electors. Or, if the State Legislature is unhappy with the conduct witnessed throughout the previous election process, it may unilaterally appoint the electors itself, or it may order a new election, with or without new election rules, or it may choose another way to choose the electors.
Congress Has Affirmed State Legislatures’ Unilateral Authority to Void Elections at Midnight after Election Day - The Post & Email
