The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.Article II, Section 1, Clause 4
This clause requires that all electors vote on the same "Day" but allows Congress to set a multiday range of "Time" for when states choose their electors. Congress has exercised this authority to set a uniform day (the Tuesday after the first Monday in November) for states to appoint electors. But Congress has also provided in the same statute that, if a state's election "has failed to make a choice" on that day, then the state legislature can afterward appoint electors in any manner it deems fit, thus effectively extending the "time" for choosing electors.
Unfortunately, the statutory text exercising this constitutional authority provides no criteria for deciding when an election "fails to make a choice" or who gets to decide when no choice was made. The historical record indicates that Congress thought this statutory language included cases where floods or inclement weather prevented "any considerable number" of voters from reaching the polls and that, in such cases, Congress wanted to confirm the power of the state's "legislature to authorize the continuance of the elections" past the congressionally prescribed election day. This legislative history indicates that an election might "fail to make a choice" even though there had been an election with a certifiable result, at least when that result was distorted by flooding or bad weather. It also makes clear that, at least in that circumstance, Congress contemplated that the state legislature was the entity that would decide whether the election had failed to make a choice. Unfortunately, the legislative history does not indicate what other circumstances Congress thought might mean an election failed to make a choice.
One interpretation is that Congress contemplated that each state legislature would have the power to decide when in its judgment other problems (including perhaps a state judicial failure to follow legislative directions or resolve election contests by congressional deadlines) meant the election failed to make a choice or was distorted. Alternatively, one might narrowly interpret the "failure to make a choice" language to prevent state legislatures from using dubious pretexts to reverse whatever presidential-election outcomes they disliked. Arguing against the alternative interpretation is the fact that state legislative decisions (unlike judicial decisions) are political actions ultimately reviewable by the state electorate, which would be displeased if a state legislature tried to alter that electorate's presidential choice on mere pretext. Further, allowing state legislatures to make such judgments could be coupled with (possibly deferential) federal judicial review as to whether the state legislatures acted pretextually and/or with congressional review when it exercises its constitutional power to decide which electoral votes to count.
Another unresolved issue is whether Congress's Twelfth Amendment power to "count" electoral votes gives it discretion to refuse to count the votes of electors whom the state legislature has properly appointed. Such congressional refusal would seem to violate Article II, Section 1, Clause 2. But the action might not be judicially reviewable, in which case only the national electorate would (at the next congressional election) be able to review any such congressional decision to exceed the proper scope of its counting power.
- Einer R. Elhauge
- Carroll and Milton Petrie Professor of Law
- Harvard Law School