While the Constitution gives states, through their legislatures, the power to choose the manner for appointing electors, it delegates to Congress the power “to determine the time of chusing Electors.” U.S. Const. art II, § I, cl. 4. Congress, in turn, has provided that all states must appoint their electors on the “Tuesday after the first Monday in November, in every fourth year succeeding every election of a President and Vice President”—which falls on November 3rd this year. 3 U.S.C. § 1
This. The process of ‘chusing’ the electors will have happened on (and in the days leading up to) November 3, but the outcome of that ‘chusing’ will have been sufficiently muddled and challenged and disputed that there will be a bullshit argument that the state legislature needs to step in and resolve it. And they’ll resolve it in favor of Trump.
The legal case for them being able to do so doesn’t need to be anywhere near solid; look at the bullshit argument for killing the ACA that the Supreme Court will be hearing oral arguments about, just one week after the election. It just needs to give a patina of legitimacy to the courts’ considering it and ultimately deciding in its favor.
I am skeptical that even John Roberts would stop an executive directed federal intervention in an election. Scalia’s conservative court pretty much set the precedent that the judiciary can and will get involved on the side of executive intervention, on grounds of defending the “equal protection” clause. Conservatives have an ironic love of equality when it serves their purposes.
Congress, in turn, has provided that all states must appoint their electors on the “Tuesday after the first Monday
in November
To me this reads as saying that states must appoint their electors on election day. Not before and not after. That would mean that whoever is ahead at 11:59:59 on Nov 3, 2020 wins the election. But surely that cant be right.
I’m pretty sure that won’t happen - there is a ton of precedent for allowing delays for mail-in votes to come in and for recounts to take place as long as they don’t push past the safe-harbor point and everything is based on trying to center the process around the election date.
I’m a bit worried about the time period in between election day and when the last mail-in ballot can be counted - I’m not sure if the full range of state power has been tested there, and I do think a lot of other posters are right that as flimsy as it is, the idea of a lawsuit over mail-in ballots might be the excuse they use to just call their own elections. I also don’t put it past the SCOTUS to just completely overturn precedent in this case.
Your are correct, it’s not right.
“Appointing” means having the election. The actual date where the specific electors are chosen is whenever the votes are counted.