The Presidential Electors Timing Clause

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.

—Michael T. Morley

Introduction

The Presidential Electors Timing Clause allows Congress to control the timing of two different aspects of the presidential election process. First, it empowers Congress to “determine the Time of chusing [presidential] Electors.” Under the Constitution, a state’s electors are chosen “in such Manner as the Legislature thereof may direct,” including through popular elections.¹ The Presidential Election Timing Clause enables Congress to designate when that selection must occur. Second, the clause gives Congress the authority to determine “the Day” on which presidential electors must cast their electoral votes, which must “be the same throughout the United States.” Thus, Congress may impose national uniformity with respect to the timing of presidential elections. Throughout American history, Congress has enacted a series of laws establishing when states choose their presidential electors and when those electors must cast their electoral votes.

The Constitutional Convention

In June and July 1787, the Constitutional Convention considered various proposals concerning the Electoral College, but none addressed the timing of presidential elections.² On September 4, the Committee on Postponed Parts suggested specifying, “The Legislature [Congress] may determine the time of chusing and assembling the Electors, and the manner of certifying and transmitting their votes.”³ This proposal would empower Congress to prescribe when state legislatures could appoint electors, as well as when those electors must meet to vote for President. Gouverneur Morris of Pennsylvania explained that Congress would ensure that each state’s electors “vote at the same time throughout the U.S.” at “a distance from each other.”⁴ This arrangement would “avoid[]” the “great evil of cabal” and make it “impossible . . . to corrupt” electors.⁵

Over the next two days, the Convention voted without debate or explanation to amend this language by clarifying that Congress may designate when electors will “giv[e] their votes” and declaring that such “election shall be on the same day throughout the United States.”⁶ On September 12, the Committee on Style reported an updated draft of the Constitution that omitted the phrase “and the manner of certifying or transmitting their votes.”⁷ The Convention records do not provide any explanation for this omission. Professor David Currie suggests that “[i]n light of the Framers’ clear desire to minimize congressional influence on the selection of the President, the omission may not have been accidental.”⁸ Following minor stylistic changes, the final version of this clause read, “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.”⁹

The Ratification Debates and Commentary

The Federalist Papers did not specifically discuss the Presidential Electors Timing Clause. In Federalist No. 68, Alexander Hamilton explained that the Framers crafted the presidential election process to avoid “cabal, intrigue, and corruption.”

The timing provisions came up rarely during the state ratification conventions. James Wilson in Pennsylvania and William Davie in North Carolina argued that requiring all electors to cast their electoral votes in their respective states on the same day would make it harder to corrupt them.¹⁰ In South Carolina, Charles Cotesworth Pinckney argued that electors would be more susceptible to bribes from foreign powers if they all gathered in a single place to cast their electoral votes.¹¹ James Iredell and Richard Dobbs Spaight in North Carolina, as well as Edmund Randolph in Virginia, were among those who noted that the clause would also preclude electors from conspiring among themselves.¹² Spaight added that the provision would allow Congress to promote “regularity and uniformity.”¹³

James Monroe of Virginia, in contrast, objected that Congress might give electors the opportunity to “form a combination” by imposing a substantial delay between electors’ appointments and the date on which they cast their electoral votes.¹⁴ Joseph Taylor of North Carolina went even further, expressing his fear that Congress might use the army, along with its power over the timing of presidential elections, to “control the election of the electors of the President” and “compel the electors to vote as [Congress] please[d].”¹⁵

Justice Joseph Story would later declare that the “propriety” of the Presidential Electors Timing Clause is “almost self-evident.”¹⁶ St. George Tucker and Chancellor James Kent explained that it helps to prevent intrigues, corruption, and cabal.¹⁷

The First Presidential Election

After approving the proposed draft Constitution, the Framers adopted a resolution to accompany it. The resolution declared that once nine states had ratified the Constitution, the Confederation Congress should “fix a Day on which Electors should be appointed by the States which shall have ratified the same, and a Day on which the Electors should assemble to vote for the President. . . .”¹⁸ The Confederation Congress did so in September 1788 following New Hampshire’s ratification.19 The states were required to appoint their electors on January 7, 1789, and the electors would cast their votes on February 4. Each elector cast one of his two votes for George Washington, and John Adams received a majority of the remaining votes.¹⁹

Federal Legislation

The Second Congress exercised its power under the Presidential Electors Timing Clause by enacting the Presidential Election and Succession Act of 1792.²⁰ This statute required presidential electors to “meet and give their votes” on the first Wednesday in December of presidential election years.²¹ Congress did not similarly establish a single day on which states would choose their electors; rather, the Act directed each state to appoint its electors “within thirty-four days preceding” the date on which electors were required to cast their electoral votes.²² Under this statute, electors were generally chosen at some point in November and cast their electoral votes in December. This arrangement was permissible under the Presidential Electors Timing Clause. While the clause requires electors to vote on the precise “day” set by Congress, it allows Congress to specify the “time” when electors must be appointed, which Congress construed to include a period of several weeks.

Over the decades that followed, nearly all states came to appoint their electors through a popular vote, and concerns grew about widespread voter fraud in presidential elections.²³ In 1845, the Presidential Election Day Act eliminated the thirty-four-day window for choosing electors. It instead specified that all states generally must appoint their respective electors on the same day: “the Tuesday next after the first Monday in the month of November.”²⁴ This statutory formula required states to hold their popular votes for President—Election Day—on a designated day between November 2 and November 8. Electors still cast their electoral votes about a month later on “the first Wednesday in December” pursuant to the 1792 Act.

The Electoral Count Act (ECA) of 1887 changed the date on which electors would cast their electoral votes to “the second Monday in January next following their appointment.”²⁵ This amendment created a roughly two-month gap between when the electors were chosen in early November and when they voted. An 1891 Michigan law nevertheless purported to require the state’s electors to cast their electoral votes on the “first Wednesday in December,” consistent with Congress’s original 1792 Act. McPherson v. Blacker (1892) held that this requirement was “in conflict with” the ECA and “must necessarily give way.”²⁶

In 1928, Congress again moved the date on which electors cast their electoral votes, this time to “the first Wednesday in January.”²⁷ In 1933, the Twentieth Amendment was ratified. It changed the beginning of the President’s term from March to January 20.²⁸ As a result, the following year, Congress pushed up the date on which electors cast their electoral votes from January to the “First Monday after the second Wednesday in December.”²⁹

Nearly a century later, Congress modified the timing of the presidential election process yet again with the Electoral Count Reform Act (ECRA) of 2022.³⁰ Electors are still presumptively chosen “on election day,” which, as in the 1845 Act, remains set for early November.³¹ But the ECRA also provides for a “modified period of voting” in response to “force majeure events that are extraordinary and catastrophic, as provided under laws of the State enacted prior to such day.”³² Critically, a state may not statutorily change its voting period for a presidential election after the originally scheduled election date has occurred. The ECRA also adjusted the date on which electors must cast their electoral votes to “the first Tuesday after the second Wednesday in December.”³³

Scope of Federal Power Over Presidential Elections

The Presidential Election Timing Clause gives Congress the power to “determine the Time of chusing the Electors” for President. The Elections Clause, in contrast, grants Congress authority to regulate the “Time, Place, and Manner” of congressional elections.³⁴ (See Essay No. 22.) As early as 1800,³⁵ questions arose as to whether this difference in language suggests that Congress cannot regulate the “Manner” of presidential electors’ appointments, including the electoral process in states that choose electors by popular vote.³⁶ A draft Constitution prepared by Alexander Hamilton, which he discussed at the Convention, would have specifically authorized Congress to adopt “further regulations as may be necessary for the more orderly election of the President.”³⁷

McPherson v. Blacker (1892) declared that “Congress is empowered to determine the time of choosing the electors and the day on which they are to give their votes . . . but otherwise the power and jurisdiction of the State is exclusive. . . .”39 The Supreme Court later rejected this interpretation, however, holding that the Constitution confers “broad congressional power to legislate in connection with the elections of the President and Vice President.”40 Pursuant to this authority, Congress has enacted laws such as the National Voter Registration Act and Help America Vote Act that regulate federal elections, including presidential elections.³⁸

Neither federal law nor court rulings explain the particular acts that may or must occur on the statutorily designated Election Day. As noted, the Presidential Electors Timing Clause states that Congress may specify “the Time of chusing the Electors.” Pursuant to this authority, the ECRA establishes the date on which electors “shall be appointed[] in each state.”³⁹ Particularly in the modern era, however, electors are not actually appointed until several weeks after this statutorily designated Election Day when results have been canvassed, any recounts and post-election contests have been completed, and certificates of election have been issued. Moreover, a person need not cast his vote on Election Day itself. Courts have generally held that election officials may accept ballots in advance of Election Day through early voting, vote-by-mail, and absentee voting,⁴⁰ and the Supreme Court has never questioned the validity of such votes.⁴¹ Foster v. Love (1997) construed the analogous statutory provision governing the timing of U.S. House elections to prohibit states from “consummat[ing]” such elections “prior to federal election day” with “no act in law or in fact to take place on the date chosen by Congress.”⁴²

Congress’s creation of a presidential Election Day bars state legislatures from claiming constitutional power to appoint their own slates of presidential electors after that date because they disagree with the outcome of the popular vote.⁴³ Moreover, the Constitution’s requirement that presidential electors throughout the nation cast their electoral votes on the same day effectively creates a deadline by which recounts, election contests, and other disputes over a presidential election’s results within each state must be resolved.

Open Questions

• May an otherwise valid ballot be accepted and counted if election officials receive it after the statutorily designated Election Day? Many states accept absentee ballots that arrive within a few days of Election Day as long as they are postmarked by Election Day or if the postmark is illegible.⁴⁴ This issue arises frequently with military and overseas voters.⁴⁵ A handful of courts, including the U.S. Court of Appeals for the Fifth Circuit and the Montana Supreme Court, have held that allowing election officials to receive completed absentee ballots in presidential elections after the close of polls on Election Day violates the Presidential Election Day Act.⁴⁶
• The Presidential Election Timing Clause provides that the “Day” on which electors “shall give their votes . . . shall be the same throughout the United States.” In light of this requirement, may Congress count electoral votes that are cast after the date it specifies? Some scholars suggest that the answer is no.50 The issue has arisen only once. Wisconsin’s electors cast their electoral votes in the 1856 election one day late due to a “terrific storm.”⁴⁷ After Congress concluded its joint session for counting electoral votes, both chambers debated whether Wisconsin’s votes were valid. “Almost every Member of Congress who spoke on the subject agreed [they] should not have been counted.”⁴⁸ Because the joint session was over and the challenged votes did not impact the outcome, however, neither chamber took further action.

1. Art. II, § 1, cl. 2; Bush v. Gore, 531 U.S. 89, 104 (2000) (per curiam). ↩︎
2. 1 Farrand’s 80; 2 Farrand’s 57, 404. ↩︎
3. 2 Farrand’s 494–95, 498. ↩︎
4. Id. at 500. ↩︎
5. Id. ↩︎
6. Id. at 507, 515, 518, 526. ↩︎
7. Id. at 598. ↩︎
8. David P. Currie, The Constitution in Congress: The Second Congress, 1791–1793, 90 Nw. U. L. Rev. 606, 618 n.62 (citations omitted). ↩︎
9. 2 Farrand’s 598 n.21–22, 658. ↩︎
10. 2 Elliot’s 512; 4 Elliot’s 104. ↩︎
11. 4 Elliot’s 304–05. ↩︎
12. 3 Elliot’s 201, 486; 4 Elliot’s 104–05, 122. ↩︎
13. 4 Elliot’s 104–06. ↩︎
14. 3 Elliot’s 488. ↩︎
15. 4 Elliot’s 104, 106. ↩︎
16. 3 Story’s Commentaries § 1469. ↩︎
17. 1 St. George Tucker, Blackstone’s Commentaries, App. Note D at 327 (1803); 1 James Kent, Commentaries on American Law 236 (1826). ↩︎
18. 2 Farrand’s 665. ↩︎
19. S. Jour., 1st Cong., 1st Sess. 8 (Apr. 6, 1789); H.R. Jour., 1st Cong., 1st Sess. 7–8 (Apr. 6, 1789). ↩︎
20. Ch. 8, § 2, 1 Stat. 239, 239–40 (Mar. 1, 1792); Annals of Cong., 1st Cong., 3rd Sess., at 1915–18 (1791). ↩︎
21. Ch. 8, § 2, 1 Stat. 239, 239–40 (Mar. 1, 1792). ↩︎
22. Id. § 1, 1 Stat. at 239. ↩︎
23. Michael T. Morley, Postponing Federal Elections Due to Election Emergencies, 77 Wash. & Lee L. Rev. Online 179, 185 (2020). ↩︎
24. Act of Jan. 23, 1845, ch. 1, 5 Stat. 721. ↩︎
25. Ch. 90, § 1, 24 Stat. 373, 373 (Feb. 3, 1887). ↩︎
26. 146 U.S. 1, 41 (1892). ↩︎
27. Act of May 29, 1928, ch. 859, § 1, 45 Stat. 945, 945–46. ↩︎
28. Amend. XX, § 1. ↩︎
29. Act of June 5, 1934, ch. 390, § 6(a), 48 Stat. 879, 879. ↩︎
30. Pub. L. No. 117-238, Div. P, 136 Stat. 4459, 5233–41 (Dec. 29, 2022). ↩︎
31. Id. § 102(a), 136 Stat. at 5233 (codified at 3 U.S.C. § 1). ↩︎
32. Id. § 102(b), 136 Stat. at 5234 (codified at 3 U.S.C. § 21(1)). ↩︎
33. Id. § 106(a)(1), 136 Stat. at 5236 (codified at 3 U.S.C. § 7). ↩︎
34. Art. I, § 4, cl. 1; Oregon v. Mitchell, 400 U.S. 112, 211 (1970) (Harlan, J., concurring in part and dissenting in part); Vasan Kesavan, Is the Electoral Count Act Unconstitutional?, 80 N.C. L. Rev. 1653, 1750 (2002). ↩︎
35. 10 Annals of Cong. 128–29 (1800); 15 Cong. Rec. 5078 (1884). ↩︎
36. Currie, supra at 618–19. ↩︎
37. 2 Farrand’s 291, 617, 624. ↩︎
38. Pub. L. No. 103-31, 107 Stat. 77 (May 20, 1993); Pub. L. No. 107-252, 116 Stat. 1666 (Oct. 29, 2002). ↩︎
39. 3 U.S.C. § 1. ↩︎
40. Millsaps v. Thompson, 259 F.3d 545, 546 (6th Cir. 2001); Voting Integrity Proj., Inc. v. Keisling, 259 F.3d 1169, 1174–75 (9th Cir. 2001); Voting Integrity Proj., Inc. v. Bomer, 199 F.3d 773, 776 (5th Cir. 2000); Lamone v. Capozzi, 912 A.2d 674, 691–92 (Md. 2006). ↩︎
41. O’Brien v. Skinner, 414 U.S. 524, 529 (1974); Brnovich v. Democratic Nat’l Comm., 594 U.S. 647 (2021). ↩︎
42. 522 U.S. 67, 72 & n.4 (1997). ↩︎
43. William Josephson, Senate Election of the Vice President and House of Representatives Election of the President, 11 U. Pa. J. Const. L. 597, 654 n.216 (2009); Richard D. Friedman, Trying to Make Peace with Bush v. Gore, 29 Fla. St. U. L. Rev. 811, 816 (2001). ↩︎
44. Nat’l Conf. of State Legislatures, Voting Outside the Polling Place, tbl. 11 (Apr. 8, 2025), https://perma.cc/25Y4-PYRB. ↩︎
45. Fla. Stat. § 101.6952(5). ↩︎
46. Republican Nat’l Comm. v. Wetzel, 120 F.4th 200, 207–08 (5th Cir. 2024), en banc denied 134 F.4th 775 (2025) (mem); Maddox v. Bd. of State Canvassers, 149 P.2d 112, 115 (Mont. 1944). ↩︎
47. Cong. Globe, 34th Cong., 3d Sess. 660 (1857). ↩︎
48. Kesavan, supra at 1686. ↩︎