by Leo Donofrio, naturalborncitizen, ©2020
(Dec. 10, 2020) — [WARNING TO TEXAS: You submitted the following inaccuracy to the Court:
“However, 3 U.S.C. § 7 requires that presidential electors be appointed on December 14, 2020.”
The deadline is NOT Dec. 14. It’s January 4, 2021. See below.]
Front and center at the United States Supreme Court today is 3 U.S.C. § 2 – the controlling statute just relied upon by Texas in their monolithic original jurisdiction action to contest the 2020 Presidential Election. As explained in detail below, that statute – read in line with 3 U.S.C. § 7 – establishes January 4, 2021, as the hard federal deadline for Presidential Electors to meet, not December 14, 2020.
December 14th is wrong according to the proper statutory construction of 3 U.S.C. § 2, read in light of 3 U.S.C. § 7. Unfortunately, section 7 has been misconstrued repeatedly. You have to read section 7 in light of section 2, and only then does the January 6th date – set by 3 U.S.C. § 15 – for Congress to count the electoral votes make a perfect circle. The following analysis decodes the exact plan as to how all of these provisions work together, and they establish clearly that January 4, not December 14, is the hard deadline for the electors to meet in this Presidential Election cycle.
McPHERSON v. BLACKER REVISITED
We know that there is a hard deadline for electors to meet before January 20th, because that’s what the Supreme Court held in McPherson v. Blacker. And it’s a mistake to argue otherwise. In that case, the unanimous opinion established decisive precedent that the Legislatures may resume power of appointing electors, “at any time”, before, during, or after, a general election. But the Supreme Court also held that Congress has plenary authority over when the electors shall meet, and that the Constitution mandated that they shall meet and give their votes in each State on the same day throughout the nation.
The Supreme Court agreed that the Legislature had plenary power to allocate electors by district, instead of by a statewide winner take all popular election, but the Court also ordered Michigan to comply with the time set by Congress for their electors to meet and vote. And no matter what litigants and pundits are now saying in court filings and on TV, the time set by Congress is granite. This is crucial. If you argue that to SCOTUS that only January 20th matters, you will get crushed. Mcpherson is clear precedent on this as well.
The good news is that the media has it dead wrong too: December 14th is not the hard deadline established by 3 U.S.C. § 7. January 4, 2021 is the hard deadline. And here’s why.
Let’s start with the text of 3 U.S.C. § 2:
“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.“
Whenever 3 U.S.C. § 2 is invoked, it provides an extension from the federal election day statutory deadline, which was Nov. 3, 2020, this year, as codified in 3 U.S.C. § 1. But notice that section 2 contains no set deadline. It simply states that electors may be appointed – as the Legislature may direct – “on a subsequent day”. There’s no limiting date in this section.
We must look to 3 U.S.C. § 7 for the deadline:
“The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.”
I have put “next following their appointment” in bold for a very important reason. This is because, had Congress meant to set the day – in each presidential election cycle – to be exactly on the first Monday after the second Wednesday in December, then the statute would not say “next following their appointment”, but it would end full stop, making the day certain each cycle, just as they did with federal election day in 3 U.S.C. § 1.
The term “next following their appointment” refers to the final appointment of all States. And if the extension of 3 U.S.C. § 2 comes into play, then the States who appointed electors on election day, and the States that did not, will obviously appoint electors on different days, which means that the day prescribed by 3 U.S.C § 7 can only be determined after all States have appointed electors.
If a State’s electors are subject to a controversy under 3 U.S.C. § 2, alleged by a failure to conclusively choose electors on election day, then the electors in each State should not meet until that controversy is resolved.
In which case, 3 U.S.C. § 7, in this election cycle, establishes January 4, 2021, as the absolute hard deadline for electors to meet, since section 7 requires the date fall on the first Monday after a Wednesday in December. This year, the last Wednesday in December is the 30th, so the first Monday after that is January 4th.
Now take notice that the very last possible day a Wednesday could ever fall on in December is the 31st, making January 5th the absolute hard deadline possible under our calendar, regardless of the election cycle. This is why January 6th can be set in stone via 3 U.S.C. § 15.
All of these sections must be read together, construed together. So, even if the States are intent on having electors meet on December 14th, it won’t matter at all, should even one state Legislature – whether by their own volition, or by Court order – invoke 3 U.S.C. § 2 in appointing even one elector. They will have to meet again in that case, in order to satisfy section 7.
The federal codes enacted by Congress by powers enumerated exclusively to that tribunal, concerning the day electors shall meet and vote, cannot be changed by rogue States. Even if all 50 States meet on Dec 14th, should even one different elector be appointed by even a partial division of just one State Legislature, on a later date, all electors will be required to meet and vote again. And the hard deadline for such a meeting is January 4, 2021, not December 14th.
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Wow. That is quite an erudite, thorough analysis. Of course, have no idea how SCOTUS may view his analysis–or the plaintives’ understanding of the law. Guess we shall see soon enough. Thank you.
Doesn’t this all depend on Donofrio’s interpretation being accepted?
If the states and courts believe that all the votes before or on November 3rd represent deciding no the election on Election Day regardless of if the vote counting goes beyond the 3rd, does this all fall apart.
From the way the state legislators are acting and the arguments being made in courts, it appears to me that they don’t agree with him.