Many posts have discussed the legal aspects of elections.
The Electors Clause of the Constitution (Article II, Section 1, clause 2) provides that “[e]ach state shall appoint” presidential and vice presidential electors in the manner “as the Legislature thereof may direct.” Article II, Section 1, clause 4, further provides Congress with power to determine when the states choose their electors or “the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” Accordingly, Congress enacted a federal statute establishing Election Day for presidential and vice presidential electors as the first Tuesday after the first Monday in November every four years. Federal law further provides that whenever a state holds an election for presidential electors “and has failed to make a choice on the day prescribed by law,” electors can be appointed on a later date “in such a manner as the legislature of such State may direct.
The ECA requires that “the executive of each State” send to the Archivist of the United States (Archivist), by registered mail and under state seal, “a certificate of such ascertainment of the electors appointed,” including the name of, and number of votes cast for, each elector. Further, the ECA commands that such certificates of ascertainment be sent “as soon as practicable” after the “final ascertainment” of the appointment of the electors or “as soon as practicable” after the “final determination of any [election] controversy or contest” that was resolved under the state’s statutory procedure for election contests.
On or before the electors meet to cast their votes, the ECA directs “the executive of each State” to deliver to the electors of the state, under state seal, “six duplicate-originals of the same certificate” of ascertainment that were sent to the Archivist. At the first meeting of Congress following the appointment of the presidential electors, the ECA requires the Archivist to transmit “copies in full of each and every” certificate of ascertainment to the two houses of Congress.
The ECA specifies that if a state, under laws enacted before Election Day and “by judicial or other methods,” has made a “final determination of any controversy or contest” regarding the appointment of electors in the state, and if that determination is made at least six days prior to the day that the electors are to meet to cast their votes, such determination “shall be conclusive, and shall govern in the counting of the electoral votes.” Known as the “safe harbor” provision, this clause seeks to “assure finality of the State’s determination” in resolving a presidential election contest (Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring).
