I’m hearing little side conversations that suggest to me some people think the President can change the date of our coming presidential election. The suggestion is offered that the coronavirus pandemic could be the motivating reason for such a change. Well, somebody must have been napping during civics class – let’s take a look.
The original text of the United States Constitution, Article II, Section 1, Clauses (2), (3), & (4) gives us a place to start our research. When it comes to the actual time of the election, Clause (4) brings us the text we are looking for at this point and it says: “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.” Clearly, our search is not over because now we need to find something that has been passed by Congress.
It’s true that the States control the Elections process when it comes to electing their Senators and Representatives. Those elections happen every two years and they are overseen by the respective Legislative body. The election of President and Vice President is different owing to the Constitutional provision for each State to elect Electors to the Electoral College for the purpose of electing the President and the Vice President.
The good news for us in this day and age is that we have a means of searching through large amounts of data with ease. We also have the ability to assemble that data with just a few keystrokes so it should be easy to find in the Library of Congress website for “Statutes at Large” the first reference to a Federal law that mandates the “time for choosing the electors” who will formally vote for our President and Vice President.
What could be clearer than the language we found in Article II, Section 1, Clause (4) when it comes to a mandate for Congressional action? “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.” To be fair, the text says “may” rather than “will” or “shall”, but prior to 1845 there was no time established at all and, therefore, it could be anything the States wanted it to be.
The timing of the election of electors was apparently left to the Legislatures of the respective States initially, but as time passed the provisions were tested and found to be open to confusion and problem. The first change came with the ratification of the 12th Amendment in 1804. Change took place, but difficulties persisted and the Federal Congress passed the following Election Day Act in January of 1845.
“Chap. I – An Act to Establish a uniform time for holding elections for electors of President and Vice President. in all the states of the Union.
“Be it enacted by the Senate and House of
Representatives of the United States of America in Congress assembled, That the electors of President and Vice
President shall be appointed in each State on the Tuesday next after the first
Monday in the month of November of the year in which they are to be appointed: Provided, That each State may by law provide for the
filling of any vacancy or vacancies which may occur in its college of electors
when such college meets to give its electoral vote: And provided, also, when any State shall have held an election for
the purpose of choosing electors, and shall fail to make a choice on the day
aforesaid, then the electors may be appointed on a subsequent day in such manner
as the State shall by law provide.
APPROVED, January 23, 1845.”
It wasn’t as though there was perfect harmony when it came to the Electoral College. No, the existence of the 12th Amendment tells us that Article II, Section 1, Clause (3) had already been proven to be less harmonious than the Founding Fathers hoped it would be.
When we fold all of the above into our thinking, we should be awe struck by the fact that our Congress took fifty six years to establish a uniform time of selecting our Electoral College Electors. Those fifty six years recorded the span of twenty eight Congresses. Those fifty six years included the terms of ten Presidents. On June 21st, 1788, New Hampshire became the 9th State to ratify the new Constitution making the new governing document officially the central law of the land. The 10th Confederation Congress was in session at the time and was not scheduled to adjourn until March 3rd, 1789. Before that actually happened the States of Virginia and New York would ratify the Constitution making the total number of States ratifying the document eleven of the existing thirteen States.
North Carolina and Rhode Island did not ratify the Constitution until after the First Constitutional Congress was called to order on March 4th, 1789. Before the Election Day Act was passed in 1845, the United States of America would number twenty six States.
Those fifty six years between the adoption of our United States Constitution and the passage of the Election Day Act in 1845 offer us documented Congressional dysfunction we may never fully understand by reading our history books.
The main reason for our Electoral College in the first place was a fear of foreign influence in our Presidential election and it took fifty six years before our Congress would bring themselves to step up and meet their responsibility.
So we have learned that as of today the time of our Presidential Election is a matter of Federal law. The day of the election will be the Tuesday next following the first Monday of November in 2020 and would require a new law before it could be changed.
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