If the 2000 election provoked a constitutional crisis, the 2020 one is flirting with disaster. Debate over voting by mail has focused mostly on the potential for fraud and logistical difficulties. But there are also legal problems with it, which carry the seeds of chaos before Inauguration Day and continuing instability after.

Under federal law, the presidential election must take place on Nov. 3, and the electors chosen on that day must vote on Dec. 14 to select the new president and vice president. These dates can’t be changed without an act of Congress, and the 20th Amendment sets Inauguration Day on Jan. 20.



Article II of the Constitution gives Congress the power to “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.” Congress has done so by enacting laws mandating that “the electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November,” and that the Electoral College must meet and vote on “the first Monday after the second Wednesday in December.” As the Supreme Court held in Foster v. Love (1997), taken together the relevant constitutional and statutory provisions mandate “holding all elections for Congress and the Presidency on a single day throughout the Union.”

It follows that although state statutes permit the use of certain mail-in ballots sent on or before Election Day, no ballot cast after Nov. 3 is constitutionally valid. That implies that counting unpostmarked mailed ballots that arrive after Election Day would be unconstitutional, as there would be no way to tell if they were cast in time. In addition, the winner of each state’s electoral votes must be determined by Dec. 14, or those votes cannot be cast.

These requirements create a six-week window during which the electors must be chosen and certified, leaving little time for errors or challenges to the results. The delays inevitable in widespread voting by mail would make it difficult or impossible for some states to meet the Dec. 14 deadline, even without challenges to the results—which are certain this year if the election is close.

The deadline is even tighter thanks to another federal statute, which requires that any controversy over the electors a state has appointed must be resolved, under pre-existing state law, at least six days before the Electoral College meets. If a dispute isn’t resolved by the Dec. 8 “safe harbor,” the state legislature has until Dec. 14 to determine how the electors are to be selected or forfeit its electoral votes. If a state meets the Dec. 8 deadline, the result is conclusive and Congress must accept it.

The U.S. Supreme Court stopped the biased Florida recount on Dec. 12, 2000—that year’s safe-harbor deadline. Time had run out to remedy the equal-protection and due-process violations in the recounts that the Florida Supreme Court had ordered. The state court had earlier concluded that the Florida Legislature intended its electors to “participate[e] fully in the federal electoral process.” Thus, the high court concluded, the safe harbor had to be met.

We can assume no state would want its electoral votes to go uncast. As a result, there is only a very short window for mail-in-ballots to be received and counted. State actions and litigation—which are already being pursued with gusto—establishing an overlong period for counting such ballots will endanger a state’s electoral votes, impeding the Constitution and federal election statutes. And, as the Supreme Court said in Ex parte Siebold (1880), Congress’s election regulations “are paramount to those made by the State legislature; and if they conflict therewith, the latter, so far as the conflict extends, ceases to be operative.”

Proponents of universal mail-in-voting argue that reliance on traditional in-person voting will disenfranchise many Americans because of the Covid-19 pandemic. Even if that’s true, the established constitutional and statutory requirements must be met. Drawing out the tabulation of large numbers of ballots received after Election Day would make this nearly impossible.

At best, the result would be electors chosen by state legislatures. At worst, states would be disfranchised in the Electoral College—or send rival slates of electors to vote on Dec. 14, leading to a bitter dispute in Congress over which votes to recognize. Any victor who emerged from such chaos would serve under a cloud of illegitimacy, promising four more years of political instability.

One of America’s greatest constitutional imperatives is the smooth and timely transition of power from one duly elected president to the next. That is now in doubt not because of the absurd notion that President Trump will refuse to leave office on Jan. 20 if the voters reject him on Nov. 3, but because the push for mail-in voting may overload the system, making an orderly election impossible.

Messrs. Rivkin and Casey practice appellate and constitutional law in Washington. They served in the White House Counsel’s Office and Justice Department under Presidents Reagan and George H.W. Bush.

https://www.wsj.com/articles/mail-in-voting-could-deliver-chaos-11598376494

I haven’t found answers where I’ve been looking. These are actual question I have, not devils advocate or pot stirring. I agree that the odds favor a winner and sworn in elected President come January 21. However the possibility of a contested election requiring a constitutionally appointed interim President is gaining traction quickly and are no longer at a conspiracy level of thinking.

Can the states certified electoral votes be contested in court? Thus causing a hold up and no official result requiring and interim? Or could a President possibly be sworn in, only to be removed from office when the court ruling reverses the contested result?



Owl

NO

Thanks, White.



Owl

I do not think you will have both a declared winner and a looser concession by 12/20 or even Christmas.

I think the realization that career politicians are unnecessary and or a negative choice for president, has led us to this course of action. Political parties are not just losing this particular election, they are seeing a future where their power and relevance will come an end. That's their problem with the current potus, not what he says or does or his policies.

It's losing their grip over the people they are scared of.

This mail in ballot business is a roadmap for preventing the loss of their power, by any means necessary.

Voting by mail is not as scary as election officials declaring a winner no matter the election results. how would you know?

We had a school district bond issue last year. Not quite 800 ballots cast. County clerk says it passed. I cant find a single person that voted for it.

I wouldn’t put stock in your bond issue straw pole, most will not admit how they vote no matter how they voted.

You wouldn’t know. At every election headquarters there will be a few stacks to as many as actual pallets of blank ballots depending on the voting population of that area, for those that come in and say they never got one. Those ballots look just like the others once out of the envelopes, no post markings, no signature matching, nothing. In Oregon they’re to be destroyed at the end of election, date & time period. There have been several cases where the ballots are still in the locations or different locations where they shouldn’t be days after the voting deadline. In another thread I mentioned that I get 5 ballots every election, 2 for kids grown and gone, an ex wife 10 years gone, me delivered here and to my folks. They don’t care and won’t fix it. How many people actually destroy those ballots or send the back to the Secretary of State, or do they vote multiple times?



Owl

Your out there....somewhere. I have no idea what your talking about nor do I care.

Watch and pay attention:

The founding fathers who wrote the Constitution 245 yrs ago were obviously much more brilliant than what we have representing us today!! Good grief Charlie Brown.

You assumed I was talking white guilt, that’s child’s play.

Keep up man.

I didn't see where Marty suggested killing a kid either.

His response was to my request for their reason to strike be greater than my guilt for striking.

That may be what you were thinking but that’s not what you said. Your quote “I looking for a reason to declare war on the communist trying to take over the country. I’m praying they come to their senses but if they don’t, give us a reason that’s better than our guilt.”

I’m with Marty, I have ZERO guilt over declaring war on communists trying to take over my country and doing what it takes to defend my country. If they come to their senses or not makes no difference to me. Their reason to strike makes no difference to me. My guilt will be nonexistent. My reason is my family, my way of life, my fellow patriots, my country.

If anyone has guilt or second thoughts, get the **** out of the way while we take care of the business that will be at hand.


Owl

[quote=danny clifton]Voting by mail is not as scary as election officials declaring a winner no matter the election results. how would you know

all sides have their own scrutineers.

most of it is done with computers boco.

Expect massive amounts of election fraud and also expect a win by Trump to NOT BE RECOGNIZED by the liberals. Better than 50% chance that this will get ugly.

U got that right Marty.

Actually it goes to the US House of Representatives where each STATE DELEGATION HAS A SINGLE VOTE. Which is advantage R as the R party holds a numerical in most state delegations.