According to news stories, voting for the November 2nd election has begun today in Florida (http://apnews.myway.com//article/20041018/D85PQTM80.html). Now, I’m aware that people with absentee ballots have probably already been voting as well, but I’m wondering how this early voting is “squared” with the constitution.
Now, I’m not sure I’ve found the right stuff, having just done some cursory searching online, but according to Article II, Section 1 of the US Constitution (my reference copy was located at http://www.usconstitution.net/const.txt) says:
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
The way I read that, the day that we choose the electors (the Electoral College) has to be the same day throughout the US. Yet, people in Florida (and other states, I believe) are casting their ballots beginning today…
I think you’re confusing the voters at large with the “electors” who actually case the binding votes that elect the President.
When you cast your ballot, you’re not voting directly for the President. You’re voting for a slate of electors who are pledged to vote for a particular candidate.
The electors make up the electoral college and they’re the ones that the Constitution requires all cast their ballots on the same day. See the Twelfth Amendment for more details.
The Constitution doesn’t regulate how the voters in each state vote. In fact, it’s silent on that topic. It provides that each state will decide how to select its electors, and there’s nothing in the Constitution that requires that a state leave it to the voters to decide in general elections. The state Legislature could decide to apppoint the electors directly, a prospect that was mooted in the 2000 Florida debacle.
Once the results for the general elections in all 50 states are known (on election night - ha!), the relevant state officials then certify the results and the electors for each state are appointed. Under federal law, they must all meet in their respective state capitals on December 13 to cast their ballots for the President and Vice-President. See this timeline.
No, it isn’t. It empowers Congress to specify an “elector election” day (in the language quoted by the OP), and requires that, if Congress does so, such day must be uniform throughout the United States. Congress took advantage of this power in the 1840’s to specify that electors should be elected on the first Tuesday after the first Monday in November, and it has been so ever since.
So the OP is asking two slightly different questions:
(1) Do state laws that allow early voting violate federal law specifying November 2 (this year) as Election Day?
(2) If not, does a federal law which is being construed to allow such early voting violate the Constitutional requirement of a uniform Election Day throughout the United States?
I’m pretty sure there has been litigation on this topic. I don’t have time to look it up right now, but wanted to clear up this point.
I think we’re speaking at cross-purposes. My point is that the Constitution does not require that there be general elections to elect the Electors who make up the Electoral College. Article II, s. 1, clause 2 leaves it up to the Legislature of each state to determine how the state’s Electors will be chosen. All states now choose their Electors by a general election, but that is not consitutionally mandated. A wide variety of methods were used over the years, before the current model of general elections was adopted.
Findlaw makes this point in their annotation to Article II, s. 1, clause 2, quoting from various Supreme Court cases:
The OP quotes Article II, s. 1, clause 4, which has three points:
Point (1) empowers Congress to determine the time for choosing Electors, which in modern practice means the general elections, but it also gives Congress discretion - there is nothing that requires Congress to legislate a timetable. Point (1) certainly does not set a definite, constitutionally mandated day on which each state must choose its Electors, nor does it require that Congress set a uniform time-table. If the states still had wide variations in the way they each chose their Electors, a uniform time-table would probably be difficult in any event, hence the Constitution gives Congress discretion.
Point (2) gives Congress the power to determine the day “on which they shall give their votes.” The word “they” here refers back to the Electors, mentioned in point (1). It doesn’t mean the people voting in the general elections, since there is no constitutional requirement that there be such general elections.
Point (3) then states that if Congress does establish a date for the Electors to vote, then that day must be uniform. That’s the day in which the Electors all gather in their respective states, as required by the Twelfth Amendment:
Point (3) doesn’t create a constitutional requirement that the voting day for the general elections must be uniform across the country. Congress can of course provide for a uniform date, under the discretion set out in point (1), but it’s not required to do so.
So, I would agree with your first re-statement of the question: does federal law provide for advance polling? That would depend on the federal law governing the matter, enacted under the authority of Article II, s. 1, clause 4, point (1), not on the Constitution itself.
But I would disagree with your second re-stated question, as I would argue that there is no constitutionally mandated requirement that the general elections to elect the Electoral College must be held on the same date. That constitutional provision only applies to the balloting by the Electors of the Electoral College, and only if Congress has established a date on which the Electors are to vote.
This one’s easy. Both instances of the word “Day” refer to the same thing. The day in question is the day electors shall give their votes, and the second clause mandates that this is the same day for Florida’s electors as Texas’s and Idaho’s. (“they” refers to the electors, not the polity.)
Northern Piper’s right that this clause does not require the populace of a given state choose that state’s electors on the same day as other states (what the sentence calls “the Time of chusing”). The first clause of the sentence does, however, give Congress the power to regulate “the Time of chusing.” Presumably this means that Congress could prohibit early voting (at least insofar as no one’s due process rights were violated) if it so wished, but it hasn’t done it.
It looks to me as if there isn’t any constitutional requirement for the Congressional elections even to be on the same day, or month, or year, as the Presidential election. And maybe there isn’t even a requirement that there be a general vote by citizens in a Presidential election.
There isn’t. However, there is a statutory requirement.
There isn’t. State legislatures have appointed electors as recently as 1876.
Concerning the statutory requirement vis-a-vis a uniform Election Day: See Voter Integrity Project v. Keisling, a challenge to Oregon’s mail-in voting system. Sayeth the Ninth Circuit Court of Appeals:
The case was decided in 2001, and I find no record of it before the Supreme Court, so I presume that SCOTUS has declined to review.