Rich Bernstein: The Fifth Circuit Was Wrong–Counting Timely-Cast Remote Votes That Are Received After Election Day is as Old as the Founding
Richard Bernstein is a Charter Member of the Society for the Rule of Law Institute. He is a former partner at Willkie Farr & Gallagher and a former partner at Sidley Austin. He clerked for Justice Antonin Scalia from 1987-88 and Judge Amalya Kearse from 1986-87.
May a State decide to count votes in a federal election that are mailed by the election date but received after?
The statutes of 18 States and the District of Columbia (“D.C.”) provide for the counting of votes that are mailed by election day so long as the votes are received by a specified date after election day. Last week, however, the Fifth Circuit ruled under federal statutes first enacted in 1845 and 1872, the word “election” required that “ballots must both be cast by voters and received by state officials” by the date set by Congress for the election. Republican National Committee v. Wetzel, No. 24-60395, slip op. at 1 (5th Cir. Oct. 25, 2024) (emphasis in original). Thus, the Fifth Circuit ruled that votes indisputably mailed on or before election day do not count if they are received after election day, even when they are received by the deadlines set by state statutes.
The Fifth Circuit’s opinion rests on the notion that having votes cast and received at different places and times is a new-fangled development that our founders would not have recognized. The Fifth Circuit stated unequivocally that “early American voting occurred contemporaneously with receipt of votes.” Id. at 12. The Fifth Circuit left for another day whether its last-second ruling will apply to this coming election. Thankfully, so far it appears that not even the Republican Party is seeking to have the ruling apply to bar mailed votes received after November 5, 2024, in the states and DC that by statute permit precisely that. That is good because the Fifth Circuit is wrong, for many reasons. This article focuses on one.
Since the founding, presidential elections have included remote voting. Per Article II, The Twelfth Amendment, and statutes first enacted in 1792, presidential electors vote on a statutorily-specified date in their States and then send their votes, including by mail, to Washington, D.C., where they are received on a later date by the pertinent government official. Electoral votes thus count even when they are not received in Washington, D.C. by the date set by Congress for the presidential electors to cast electoral votes.
The Fifth Circuit ruling rests on the proposition that a vote is not counted unless by the statutory date set for the election a government official “takes custody of it [the vote].” 5th Cir. slip op. at 8-9. This contradicts how Article II, the Twelfth Amendment, and the federal statutes implementing them conduct the counting of electoral votes. The votes of the presidential electors—who are not acting as government officials—are properly cast by the federal statutory date in mid-December in each State, even though those votes are received only on a later date by the pertinent government official in Washington D.C. It makes no sense to decide that a citizen’s vote for electors must be received by a government official on the statutory date for popular voting, when the Constitution and implementing statutes establish that the votes of the electors themselves are timely cast by the statutory date for electoral voting, even though that date is before the pertinent government official receives the electoral votes on a later day. Thus, the 5th Circuit has wrongfully read Congress as preempting the States from permitting for popular votes what the Constitution and federal statutes themselves do for electoral votes–allow their receipt by a government official on a date after the date set by statute by which the votes must be cast.
SINCE THE FOUNDING, THAT FEDERAL STATUTES SET A DATE FOR PRESIDENTIAL ELECTORS TO VOTE DOES NOT REQUIRE A GOVERNMENT OFFICIAL TO RECEIVE THE VOTE ON THAT SAME DAY
Section 1 of Article II provides that the President and Vice President “be elected” every four years. As our presidential “elect[ion] system has developed, it has two parts. First, in each of the 50 states (and D.C.), by a date specified by federal statute, citizens vote to elect the presidential electors. The Fifth Circuit agrees that state officials may count those votes after election day without violating any federal statute. Second, on a day specified by federal statute, in each State (and D.C.), the presidential electors vote by ballot for the President. The vote by the electors is every bit as much an “election” as the popular vote by citizens. See Chiafalo v. Washington, 591 U.S. 578, 592 (2020) (the electors “do indeed elect a President”). This second part of the presidential “election” is important here because it is in Washington D.C., not in the States, that electoral votes from each State are received by the pertinent government official. The second part of the presidential election is thus an exercise in remote voting in that electoral votes are cast on a date specified by federal statute, even though the electoral votes are received at a different place on a later day.
The text of Clause 3 of Section 1 of Article II and the Twelfth Amendment makes clear that the votes of the electors are complete in their States before their votes are received at “the Seat of the Government”, now Washington D.C., by the President of the Senate. Like Article II, Section 1, Clause 3, the Twelfth Amendment commands: “The Electors shall meet in their respective states and vote by ballot … and they shall make distinct lists” of the “number of votes” for each candidate, “which lists they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.” (Emphasis added.) Therefore, in the presence of Congress, the President of the Senate opens the certificates “and the votes shall then be counted.” Id. State officials do not receive electoral votes, the President of the Senate does. Plainly, the Constitution provides that the “voting by ballot” of electors occurs and is completed in each State even though only later are “the votes” received in Washington D.C. by the President of the Senate. Id.
It cannot be argued that the presidential electors themselves somehow both cast electoral votes and are officials who receive electoral votes on the day cast. The Supreme Court has twice rejected that presidential electors act in any other capacity other than as voters. Specifically, just like voters for Congress, presidential electors do not act as officials. See Ray v. Blair, 343 U.S. 214, 224 (1952) (“presidential electors… are not federal officers or agents any more than the state elector who votes for congressmen”); In re Green, 134 U.S. 377, 379-80 (1890) (“The sole function of the presidential electors is to cast, certify and transmit the vote of the State for President and Vice President of the nation…. [T]he electors … are no more officers or agents of the United States than are … the people of the States when acting as electors of representatives in Congress”). Thus, presidential electors cannot be viewed as government officials who receive electoral votes. Presidential electors are voters only.
This is confirmed by Article II, Section 1, Clause 4 and the statutes implementing Article II, Section 1 and the Twelfth Amendment. Article II, Section 1, Clause 4 not only empowers Congress to “determine the Time of chusing the Electors,” it also empowers Congress to determine “the Day on which they [the Electors] shall give their Votes.” Here, “give their Votes” is a synonym for “cast their ballots.” See Chiafalo, 591 U.S. at 592 (electors “meet and cast ballots to send to the Capitol”); id. at 593 (“Electors have only rarely exercised discretion in casting their ballots for President.”).
The Act of March 1, 1792, 1 Stat. 239 (1792), implemented Section 1 of Article II. The 1792 Act required the electors to “meet and give their votes on the said first Wednesday in December,” and to make and sign three sealed certificates of “the votes by them given.” Id. at 239-40. The statute also required the electors to transmit a sealed certificate of their votes to the President of the Senate in at least two ways. First, the electors had to appoint a person to “deliver [one certificate] to the President of the Senate, at the seat of government, before the first Wednesday in January then next ensuing.” Id. at 239-40. Thus, the remote voting electors had 27 days after the day on which electoral votes must be cast to effectuate receipt of their votes by the pertinent government official. Second, the 1792 Act also required the electors to “forthwith forward by the post-office to the President of the Senate, at the seat of seat of government, one other of the said certificates.” Id. at 240. If the person appointed to deliver the electoral votes to the President of the Senate did not do so within 27 days after the date set for casting votes, the electoral votes sent by mail would be counted. Third, if both the hand-delivery and mailed certificates “shall not have been received at the seat of government on the said first Wednesday in January,” the U.S. Secretary of State was commanded to send a special messenger to the district judge in the pertinent state who had the third sealed certificate, “who shall forthwith transmit the same to the seat of government.” Id. Necessarily, this third sealed certificate would not be received by the President of the Senate until more than 28 days after the day set by statute for casting the electoral votes.
The Fifth Circuit was therefore simply wrong that “early American voting occurred contemporaneously with receipt of votes.” 5th Cir. slip. op. at 13. That is untrue regarding electoral votes under the 1792 Act. And an Act of March 26, 1804 provided that the electoral voting, transmission, and receipt provisions of the 1792 Act would continue in effect under the Twelfth Amendment. 2 Stat. 295 (1804). The provisions of the 1792 and 1804 Acts remained in effect when the Revised Statutes were codified in 1873. R. S. Sections 140-41. In the 1948 codification of Sections 11 and 12 of Title 3, “registered mail” was the specified method of delivery to the President of the Senate. 62 Stat. 674 (1948).
In the Electoral Count Reform Act’s (ECRA) most recent iteration, 3 U.S.C. Section 7 provides that on the first Monday after the second Wednesday in December, “in each State” the Electors shall “meet and give their votes.” 3 U.S.C. Sections 9 through 11 reaffirm that the electoral votes already have been “given” before “[t]he electors make and sign … certificates of votes,” seal the certificates, and “transmit” the signed and sealed “certificates” to “the President of the Senate at the seat of government” by “the most expeditious method available.” 3 U.S.C. Sections 12 and 13 provide that if a State’s electoral votes are not “received by the President of the Senate,” or the Archivist, by nine days after the statutory date by which they must be given–that is, not “received … by the fourth Wednesday in December”–the President of the Senate, or the Archivist in her absence, must request and the State’s chief election officer and a district judge in the state must thereafter each send a sealed certificate of that State’s previously completed electoral votes the President of the Senate. Most important, like its predecessors, nothing in the ECRA prevents Congress from counting timely-cast electoral votes even if the votes are not received by the President of the Senate until the day set for Congress to count electoral votes.
In sum, although federal statutes for 232 years have specified that presidential electors must give their votes on a certain day, there has never been a requirement that in order for electoral votes to be counted, the electoral votes must be received by the pertinent government official, the President of the Senate, on the day specified for the electors to vote. To the contrary, both the text of the Constitution and the implementing statutes ever since have made plain that electoral votes are “given”–that is, cast–when they are voted by ballot at the meeting of electors in each State, and not when electoral votes are later received in Washington, D.C.
POPULAR VOTES SHOULD BE TREATED THE SAME
As quoted above, the Supreme Court’s decisions in Ray v. Blair and In re Green foreclose any argument that presidential electors should be treated as performing a function other than voting. Presidential electors act solely as voters just as citizens casting popular votes do. Neither act as government officials who receive electoral votes. The Congress that, in 1845, enacted the first nationwide election day for popular voting was well aware that an electoral vote is given remotely on the day required by statute, even though the electoral vote is received by the pertinent government official, the President of the Senate, on a later day. That 1845 statute specifically noted that presidential electors themselves “give” their electoral vote when they meet in their States. Specifically, after providing for a national election day for appointing electors, the 1845 statute added: “Provided, That each State may by law provide for the filling of any vacancy or vacancies which may occur in its college of electors when such college meets to give its electoral vote.” 5 Stat. 721 (1845). As amended, this provision is now codified at 3 U.S.C. Section 4. Nothing in the 1845 statute, the subsequent 1872 statute setting a national day for congressional elections, 17 Stat. 28 (1872), or any subsequent revision supports what the Fifth Circuit did. The statutory word “election” does not impose on all 50 states and D.C. a rule that, unlike an electoral vote, a popular vote that is cast remotely by election day is not counted unless it is also received by the pertinent government officials by election day.