[Political Junkie Too]

After the 2020 election, the Democrats actually changed the US Code to allow for endless counting after election day.

Title 3 § 2 prior to December 29, 2022:

3 U.S. Code § 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 a manner as the legislature of such State may direct.

The Democrats repealed this statute after the January 6 2001 protests. Their bill did two things:

1. Made it harder to challenge the Electoral College certificate from the states.

2. Eliminated the power of state legislatures to appoint their own Electoral College members if the result of the vote was not determined on Election Day.

If SCOTUS wanted to take full advantage of this case to restore proper election law doctrine, here is what it should recognize and then do:

1. The Constitution actually grants different degrees of election law powers to different bodies for specific elections:
   • For Congress - Article I Section 4:

     The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.

     1. For the House: "Congress may at any time by Law make or alter such Regulations": meaning Times, Places and Manner of holding Elections

     2. For the Senate: "except as to the Place of Chusing Senators."

     In summary, Congress can override state election law regarding manner, time and place for House elections, but only manner and time regarding Senate elections.

   • For the Electoral College - Article II Section 1 Clause 2:

     Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

     Article II Section 1 Clause 3:

     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.

     In summary, Congress can only override the date and time of Electoral College elections.

   • For state elections, the Constitution is silent.

The root cause problem is that the states have managed these elections via a single ballot for convenience, in disregard for the possiblity that the different elections on the ballot can have different constitutional rules that govern them.

In this case, a state can extend the mail-in ballot deadline for state elections, but the Constitution gives Congress the power to choose the time of Electoral College elections, which is the first Tuesday after the first Monday in November. Via the Article VI Supremacy clause, states cannot change this date for the Electoral College. This means that extending mail-in ballot receipt for presidential elections is not allowed by the states.

Similarly, Congress has the power to set the time for House and Senate elections, which is now the same as Electoral College elections. Again, states have no power to extend the Congressionally established time via late mail-in ballot receipt.

-PJ

[lastchance]

That U.S. code applies to the choosing of electors not to the count of the popular vote.

[Alas Babylon!]

In summary, Congress can override state election law regarding manner, time and place for House elections, but only manner and time regarding Senate elections.

Wasn't this overridden by the 17 amendment?

Before the 17th, the only "place" to elect Senators was in the State Legislature.

After the 17th, this was changed to wherever voters voted for everything else, in diverse and numerous places.