By David B. Rivking, Jr., and Lee A. Casey
25 August 2020 in the Wall Street Journal
If the 2000 election provoked a constitutional crisis, the 2020 one is flirting with disaster. Debate over voting by mail has focused mostly on the potential for fraud and logistical difficulties. But there are also legal problems with it, which carry the seeds of chaos before Inauguration Day and continuing instability after.
Under federal law, the presidential election must take place on Nov. 3, and the electors chosen on that day must vote on Dec. 14 to select the new president and vice president. These dates can’t be changed without an act of Congress, and the 20th Amendment sets Inauguration Day on Jan. 20.
Article II of the Constitution gives Congress the power to “determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” Congress has done so by enacting laws mandating that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November,” and that the Electoral College must meet and vote on “the first Monday after the second Wednesday in December.” As the Supreme Court held in Foster v. Love (1997), taken together the relevant constitutional and statutory provisions mandate “holding all elections for Congress and the Presidency on a single day throughout the Union.”
It follows that although state statutes permit the use of certain mail-in ballots sent on or before Election Day, no ballot cast after Nov. 3 is constitutionally valid. That implies that counting unpostmarked mailed ballots that arrive after Election Day would be unconstitutional, as there would be no way to tell if they were cast in time. In addition, the winner of each state’s electoral votes must be determined by Dec. 14, or those votes cannot be cast.
These requirements create a six-week window during which the electors must be chosen and certified, leaving little time for errors or challenges to the results. The delays inevitable in widespread voting by mail would make it difficult or impossible for some states to meet the Dec. 14 deadline, even without challenges to the results—which are certain this year if the election is close.
The deadline is even tighter thanks to another federal statute, which requires that any controversy over the electors a state has appointed must be resolved, under pre-existing state law, at least six days before the Electoral College meets. If a dispute isn’t resolved by the Dec. 8 “safe harbor,” the state legislature has until Dec. 14 to determine how the electors are to be selected or forfeit its electoral votes. If a state meets the Dec. 8 deadline, the result is conclusive and Congress must accept it.
The U.S. Supreme Court stopped the biased Florida recount on Dec. 12, 2000—that year’s safe-harbor deadline. Time had run out to remedy the equal-protection and due-process violations in the recounts that the Florida Supreme Court had ordered. The state court had earlier concluded that the Florida Legislature intended its electors to “participate[e] fully in the federal electoral process.” Thus, the high court concluded, the safe harbor had to be met.
We can assume no state would want its electoral votes to go uncast. As a result, there is only a very short window for mail-in-ballots to be received and counted. State actions and litigation—which are already being pursued with gusto—establishing an overlong period for counting such ballots will endanger a state’s electoral votes, impeding the Constitution and federal election statutes. And, as the Supreme Court said in Ex parte Siebold (1880), Congress’s election regulations “are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative.”
Proponents of universal mail-in-voting argue that reliance on traditional in-person voting will disenfranchise many Americans because of the Covid-19 pandemic. Even if that’s true, the established constitutional and statutory requirements must be met. Drawing out the tabulation of large numbers of ballots received after Election Day would make this nearly impossible.
At best, the result would be electors chosen by state legislatures. At worst, states would be disfranchised in the Electoral College—or send rival slates of electors to vote on Dec. 14, leading to a bitter dispute in Congress over which votes to recognize. Any victor who emerged from such chaos would serve under a cloud of illegitimacy, promising four more years of political instability.
One of America’s greatest constitutional imperatives is the smooth and timely transition of power from one duly elected president to the next. That is now in doubt not because of the absurd notion that President Trump will refuse to leave office on Jan. 20 if the voters reject him on Nov. 3, but because the push for mail-in voting may overload the system, making an orderly election impossible.
Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.