Article II, Section 1, Clause 4: Time of Presidential Elections

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.

This clause seems uncontroversial and straightforwards. However, at least one legislator in North Carolina objected to the clause, on the grounds that it was an unwarranted infringement on the prerogatives of state legislatures to run their own elections, and out of fear that an election held on a single day might be susceptible to interference by the federal army. Such objections may seem quaint to us today, but they illustrate how jealous the state legistlatures of the Founders’ generation were of their prerogatives, and how much the Founders’s generation feared standing armies.

We can find no controversy in case law over this clause. However, we can posit some interesting hypotheticals. Suppose a terrorist group or an insurrection interrupted the voting of the electors in a state? If the electors could not cast their votes until the disorder was suppressed, would their votes still be valid?

Do absentee ballots and early voting violate this clause? Evidently not. In fact, the disputes that have come before the courts recently have revolved around whether there is a right to early or absentee voting, and the courts have tended to lean towards Yes. We are inclined to agree that, so long as the votes are not actually counted until Election Day, there is no constitutional difficulty with absentee or early voting. Some of us do have other objections to such voting, feeling that the better course would be to make voting on Election Day as easy as possible, but that is a policy disagreement, not a Constitutional question.