Congress has gathered all the statutory provisions related to the election of the President into Title 3 of the United States Code. Some of these provisions were part of the Electoral Count Act of 1887. The “failed election” provision of Title 3 was enacted 30 years before the Electoral Count Act, at the time when Congress set election day to be a single day rather than a range of days during which the votes might occur.
3 USC §1 declares the day on which the presidential election shall happen. §2 declares:
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 language “failed to make a choice” has created some confusion. We know the language was crafted to deal with a very specific problem: certain states (eg. New Hampshire) had a requirement that the choice of an elector for President had to be by a majority, not a mere plurality. This provision gave the states the ability to keep such a system, but then provide for a backup election when such a requirement was not met.
Today, there are a number of states that have implicitly taken advantage of this provision in the case of a tie. The is one state, North Carolina, that expressly references this section in the case when no electors are selected by the time in which they must vote.
Whether 3 USC § 2 could apply to other causes of failure is a harder question. If the “failure” to make a choice were applied to something other than a majority requirement— such as an emergency caused by a natural disaster—a state might argue that Section 2 gives it the power to pick its own slate of electors in the face of this other types of “failure.” Applying the “plain meaning” of the term “failure,” this interpretation seems possible, even if it reaches far beyond the original context that drafters of this provision had in mind.
It seems that any of the states can send additional slates of electors to Congress. Under the ECA, it is the President of the Senate who opens the slates of electors. The crucially important point is that the slate must be signed by the state’s governor to be valid. This is where political party might matter. It is less likely that a state with a Republican legislature and a Democratic governor could pull off an alternative slate; the governor is unlikely to sign the slate. However, in a state with both a Republican legislature and governor, it seems more likely that an alternative slate would be certified.
Section 15 of the ECA governs what happens next. 3 U.S.C. § 15. If more than one slate gets sent to Congress and neither is presumptively valid against the other, the Joint Session must pick which to count. If both Houses agree, that slate is counted. But if they don’t (Congress is tied), the slate that is certified (signed) by the governor is the one that prevails.
The Original Intent of 3 U.S.C. § 2: Give Judiciable Power to State Supreme Courts in Cases of Election Disputes
3 U.S.C. § 2 specifies that if a state’s election fails to choose a slate of electors, then the state legislature can submit a slate of electors otherwise. The original thrust of the statute was to let each State Supreme Court be in control of determining each state’s determination in cases where the election result is indeterminable. See generally Edward B. Foley, The Analysis and Mitigation of Electoral Errors: Theory, Practice, Policy, 18 STAN. L. & POL. REV. 350 (2007). See also Michael Pitts, Heads or Tails?: A Modest Proposal for Deciding Close Elections, 39 CONN. L. REV. 739 (2006). Congress was especially concerned about the problem of a “statistical tie,” in which case the presidential result would be determined essentially by random. Giving the states the power to determine results gives State Supreme Courts the power to adjudicate. While on its face, the statute appears to give state legislatures the power to determine electors, a part of the original legislative intent was to give power to the State Supreme Courts. Principles of Election Law § 317 (2019).
Legislative History of 3 U.S.C. § 2: Applied Only During Unforeseen Circumstances
On its face, the statute gives wide latitude for the State legislatures and State Supreme Courts for deciding when to apply the statute. However, in the legislative history of the debates about 3 U.S.C. § 2, Congress seemed to have intended the statute’s application to apply only in circumstances of “unforeseen emergencies.” Under such emergency circumstances, then the effects of 3 U.S.C. § 2 would apply, and if no such emergency arises, then 3 U.S.C. § 2 would not be applicable. If such an emergency arises, then the discretion is left to the State Supreme Courts and state legislatures, as previously analyzed.
The next question is, whether states’ emergency statutes would apply, or if the effects of 3 U.S.C. § 2 would only apply in an extreme, narrow set of cases. The courts have not addressed this particular issue. Some scholars, like Michael Morley, postulate that 3 U.S.C. § 2 can only be properly invoked for a narrow set of extraordinary circumstances: devastating natural disasters or terrorist attacks that incapacitate abilities to vote count. See Michael Morley, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks, 67 Emory Law Journal 545 (2018). These types of emergencies do not seem to align with the type of emergency envisioned for the 2020 election. In the past, states have invoked emergency statutes for issues ranging from fires burning all of the vote counting machines in a county to hurricanes incapacitating a state’s ability to exercise its election processes. None have contemplated the types of mail-in ballot fraud issues that President Trump and others are alleging, and it is possible that courts would find this type of situation to constitute an “extraordinary emergency,” even if this type of emergency does not conform to previously envisioned situations. Moreover, because 3 U.S.C. § 2 has not yet been invoked before—Bush v. Gore sidestepped the potential issues of a state changing out a slate of electors—it is foreseeable that states would want to take advantage of this sort of unprecedented emergency allegation to invoke 3 U.S.C. § 2 to choose their own slates of electors. In such a circumstance, there are two likely scenarios to arise.
Unfortunately, because 3 U.S.C. § 2 is worded to give states latitude in making decisions when they fail to make a choice during an election, some states have adopted their own statutes in ways that liberally interpret, and in some cases, even go against the original legislative intent of 3 U.S.C. § 2. North Carolina’s disputed election statute, for example, gives its state legislature broad authority to select slates of electors in disputed election scenarios, even if the grounds for such selections are shaky. Thus, North Carolina’s state legislature could theoretically call an emergency session to appoint its own slate of electors even if the evidence is not clear whether an extraordinary emergency has occurred and even if there is not good evidence to support claims of fraud or otherwise. These liberal derivative statutes, based on 3 U.S.C. § 2, ignore the legislative intent and present risks of rogue legislatures altering the election results by declaring their own slates of electors.
One likely scenario that might arise is that the election results may be postponed because of some states’ statutes that allow for postponement in case of emergency. Given that 3 U.S.C. § 2 gives states latitude for determining electors in cases of emergency, states following their own emergency statutes could postpone the election results for their state.
The other likely scenario is the issue of a governor appointing an alternative slate according to the state’s emergency statutes. Many states have provisions in their state statutes that the governor would choose a slate of electors if the election is inconclusive or in dispute. Following these statutes, Republican governors in battleground states could potentially appoint a slate of electors to re-elect President Trump, even if the ballots tip towards Vice-President Biden.
Arguments Against Invoking 3 U.S.C. § 2 for Allowing States to Submit an Alternative Slate
Both of these scenarios are deeply unsettling—both could lead to chaos and major confrontation. Additionally, both raise fundamental questions about whether 3 U.S.C. § 2 should be invoked in such a situation. If either of such scenarios arise, fighting the applicability of 3 U.S.C. § 2 in federal and state courts becomes paramount. Specifically, the challenge should be centered around whether a ballot fraud allegation constitutes an emergency situation.
The crux of the issue is that states have radically different ways of dealing with election disputes. Some, like Louisiana, allow delays in voting, others give the state executive full authority to remedy. In those states that give the governor the power to determine the slate of electors, determining whether the governor’s power is an appropriate remedy is the central question. Following precedent, state emergency statutes generally give the governor broad powers to declare a state of emergency and postpone ballot counting in order to take steps necessary to protect human life, but these have only been applied in cases where it was made physically impossible or difficult to cast a ballot, either by terrorist attack (like 9/11) or natural disaster (fire or hurricane). See id. These situations do not seem to be congruous with the potential challenges that this upcoming election poses. Mail-in ballot fraud or other types of election fraud do not constitute an immediate threat to human life. Arguing that the type of “emergency” raised in the 2020 election does not constitute the type of emergency envisioned by 3 U.S.C. § 2 or by past precedents is a potential way to argue against invoking the statute.
Textually, the phrase “failed to make a choice” does not mean that the choice itself is difficult to ascertain. To “fail” means “to be unsuccessful” or “to fall short.” Meriam-Webster.com Dictionary. Voters themselves do not “fail to make a choice” unless an exactly equal number of voters vote for Biden as for Trump. In that case, voters would “fail to make a choice” because there was a tie. Under Florida law, for instance, a tie would be broken on a later date by the drawing of lots. Florida Statutes § 100.181. A tied election falls under the exception to election day appointment given in 3 U.S.C. § 2. A stalled election does not.
This is consistent with the Supreme Court’s interpretation of the parallel provision of federal law for Congressional elections, 2 U.S.C. § 8, which uses nearly identical phrasing. That provision provides that when there is a vacancy in federal office caused by a “failure to elect at the time prescribed by law,” then State law may prescribe an election on a subsequent date. 2 U.S.C. § 8(a). The Supreme Court has held that a “failure to elect” occurs where all votes are counted but, by law, no candidate has been elected—because, say, there is a requirement that a candidate receive a majority of the vote to be elected. Foster v. Love, 522 U.S. 67, 72 (1997).
In a footnote, the Supreme Court explained why 2 U.S.C. § 8 would permit a state to hold a run-off election if it held an election with a majority-winner requirement on election day and no candidate received a majority of the vote:
Title 2 U.S.C. § 8, which was enacted along with § 7, provides that a State may hold a congressional election on a day other than the uniform federal election day when such an election is necessitated “by a failure to elect at the time prescribed by law.” The only explanation of this provision offered in the legislative history is Senator Allen G. Thurman’s statement that “there can be no failure to elect except in those States in which a majority of all the votes is necessary to elect a member.” Cong. Globe, 42d Cong., 2d Sess., 677 (1872) (remarks of Sen. Thurman). In those States, if no candidate receives a majority vote on federal election day, there has been a failure to elect and a subsequent run-off election is required.
Id. at 72 n.3. As the Supreme Court recognized with respect to 2 U.S.C. § 8 in Foster, there is no doubt that 3 U.S.C. § 2 was enacted to permit states to conduct just a run-off election in the case of a tie.
Whether Courts Apply Legislative History is Key
If it would be difficult to make the case for an emergency in front of the courts, would 3 U.S.C. § 2 still be applicable? The legislative history would seem to indicate otherwise. Interpreting the statute on its face, on the other hand, there is a colorable legal argument that the statute would apply even absent an emergency—as long as there is a dispute, state legislatures can override and appoint their own slate of electors. The deciding factor comes down to the state courts—what Congress had originally anticipated when drafting the statute—to decide whether legislative history and legislative intent should factor into deciding whether 3 U.S.C. § 2 kicks in if a dispute arises in any particular state.
Fraud and the Application of 3 U.S.C. § 2
Fraud cases and close re-election cases have been present before, but the case is different for presidential elections as opposed to local or congressional elections. One option available in congressional elections, for instance, is simply to postpone the election or seat the Senator/Congressman later, when another election or a recount is held. That option does not exist for the presidential election. Never before in US history has there been a second election held for the presidency, and the timeline for inauguration is firm—there is no time to re-hold the election.
Common People v. Georgia found a multi-prong test for testing whether emergency statutes would be triggered for elections. Among those prongs is common law fraud. If the Georgia case’s logic is to be followed, then there may be a case to be made for common law fraud to be the grounds upon which to sue in the event of an election law dispute. However, the elements for common law fraud—intentional misrepresentation, knowledge of the falsehood, reliance, and damage—do not seem to apply very well to election law. Moreover, existing election fraud statutes potential override any claims for common law fraud. An argument for terrorism/outside intervention induced failure to make a choice, however, seem to fall under the type of emergency that 3 U.S.C. § 2 anticipated. How courts would respond to such an argument is unclear.
Presidential election disputes are not rare, but past disputes came only within slim margins—a recount in 1960 for Nixon in Hawaii, Florida in 2000 for Bush—and none have even come close to the allegations that the Trump Administration is peddling. In fact, the Brennan Center at the New York University School of Law found only four cases of documented fraud in the 2016 elections. If, however, the Trump Administration challenges the election in courts on fraud grounds, there would simply be no time for a runoff election.
A Remedy: Do Not Count Dispute States in Final Tally
One remedy for seriously disputed elections is, instead of appointing an alternative slate of electors and go through the legal gymnastics of disputing that alternative slate, to simply not count the electoral votes of that particular state should the state fail to make a choice. If Florida fails to make a choice, then its electoral votes would not be accounted for during the final race to 270. The predicate of this type of remedy is that the court finds that there is no clear outcome to the election of that state. Constrained by time, this would perhaps be the most sensible resolution in case a serious dispute arises in any given state.