A great question, discussed and answered here:
3 U.S.C. § 7 Proves Electors Must Be Appointed On Election Day, Not Certification Day
...CONGRESS AUTHORIZED EARLY VOTING BY ABSENTEE BALLOT.
The article linked above by Ren Jander at Thepostemail.com has this all covered discussing a 9th Circuit case that interpreted Foster v. Love:
“In Voting Integrity Project v. Keisling, 259 F. 3d 1169 (2011), the 9th Circuit reviewed an Oregon statute that allowed early voting by mail, holding that nothing in Foster v. Love prohibited early voting, as long as the election was not consummated until federal Election Day. While Oregon allowed early voting, well before Election Day, unlike the Louisiana case, Oregon also continued voting on Election Day, the same day the election was decided.The 9th Circuit took notice of federal statutes that require the States to accommodate absentee ballots, which inherently require multi-day early voting, holding that 2 U.S.C. § 7 did not conflict with early absentee ballot voting, because the evils of early voting were not encouraged by it, since the results of early voting were not released to the public until Election Day, and therefore could not influence later elections. The 9th Circuit assumed Congress intended both statutes to co-exist.”
Early voting is only part of “the election”, and as long as the election isn’t consummated prior to Election Day, the 9th Circuit was cool with it. Will SCOTUS be cool with it? I think so. Because Congress is given authority over the “time” of choosing electors. In McPherson, SCOTUS stated that not even the Legislature could mess with the time, and in that case, Michigan was forced to change her statute to comply with Congress setting a uniform day for electors to meet, just as Louisiana was forced to change her statute allowing federal elections to be consummated in October. (See my previous post.)
In Foster v. Love, the Court defined “the election” as the combined actions of voters and officials in selecting a winner on “the day” prescribed by Congress, aka election day. This is why, throughout the oral argument for Foster v. Love, the law was consistently referred to as the federal election day statute.
Early voting is allowed, because Congress has authorized it by way of absentee ballot statutes. But Congress has not authorized late ballots, or canvassing past Election Day. And to the extent a State, by legislative enactment, or otherwise, let’s call it Executive Branch usurpation, as happened in both Pennsylvania and Georgia, such extensions are preempted by the federal election day statutes, as was the holding in Foster v. Love, and McPherson v. Blacker, which held:
“The third clause of section 1 of Article II of the Constitution is: ‘The Congress may 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.’…The state law in question here fixes the first Wednesday of December as the day for the meeting of the electors, as originally designated by Congress. In this respect it is in conflict with the act of Congress, and must necessarily give way.“
[The money shot...]
You see how they did that? State law cannot change federal election day. Louisiana tried that. But Louisiana got squashed 9-0. You can’t consummate the election on any other day besides the day prescribed by Congress, this year falling on November 3, 2020. It’s ok to have early voting, as long as the States don’t allow the results to be known, and as long as the election isn’t consummated before election day.
That being understood, in what universe does Congress allow a federal election to be consummated after federal election day? Not the one we are living in, unless we are now living in a nation completely untethered to federal statutes, and long held Supreme Court precedent.
...
You can have "early voting" where voters submit/send/drop off their ballots prior to "election day"....so long as the vote counts are NOT made public prior to "election day."
Voting, or counting of votes PAST "election day" 12:01 am (0001) the next day is ILLEGAL per federal law && SCOTUS - 9 to 0 decision.
Late ballots a.k.a. ballots brought in at 0-dark-hundred Nov 4th.
NOT allowed, per Foster v Love.
Can’t change the constitution by statute. You have to amend constitution if that’s not how you want it done.