The election is moot!

 Or, at least it appears to be if anyone gets around to citing Foster before the Supreme Court.

“When the federal statutes speak of ‘the election’… they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder… By establishing a particular day as ‘the day’ on which these actions must take place, the statutes simply regulate the time of the election, a matter on which the Constitution explicitly gives Congress the final say.”  Foster v. Love, 522 U.S. 67, 71-72 (1997)

We will take a closer at this binding precedent below, but in preview, please understand that it emanates from a 9-0 decision of the United States Supreme Court, wherein the entire Court joined, not just the outcome, but also the opinion on this very point.

The voters vote.  The officials count.  These combined actions form “the election,” and the election must be decided on the day.  States that failed to make a final selection of officeholder by midnight after Election Day have violated the statute, subjecting the nation at large to the very evils Congressionally mandated deadlines were drafted to prevent….

3 U.S.C. § 2 kicks the decision back to the State Legislatures after a failed election renders the previous results void.  Failed elections nullify all votes, not just some votes, not just late votes, not just illegal votes.  The election itself is void in late States. 

Which States are late?  The answer will be a question of first impression for the Supreme Court.  But the only fair answer is obvious.  If, at midnight, one candidate had enough of a lead, so that there was no mathematical possibility whatsoever of their being caught – after a review of the votes already counted, and the votes remaining – then the final selection has been made on time.  But if the outcome was uncertain at Midnight, the State violated the deadline, and its election is void….

As to Representative and Senate races, the statutes mandate subsequent elections, but as to presidential electors, 3 U.S.C. § 2 provides a deadline extension to the State Legislatures alone to determine – “in such manner as the legislature of such State may direct” – which electors shall be appointed.  This statute simply reiterates the plenary authority in the United States Constitution.

We should find out soon what the State Legislatures will do, because the United States Supreme Court is about to nullify the results of this election in every State that failed to report a clear winner before November 4th.

It seems a little hard to credit, to be sure, but the logic and the Supreme Court citation appear to be sound. And remember, ignorance of the law is no excuse, not even for District Court judges and State legislatures.