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16 J.L. & Pol. 699 (2000)
Nobody for President

handle is hein.journals/jlp16 and id is 709 raw text is: Nobody for President
John Harrison*
Disputes concerning presidential electors and their votes are
more common than one may think. When the electoral votes from
the 1856 presidential election were counted in 1857, for example,
there were doubts about Wisconsin's votes, because its electors had
met and voted a day late due to a blizzard.' Most of the time, as in
1857, it does not matter because there are enough undisputed
electors to constitute a majority.
At least twice it has mattered. After the 1876 presidential election,
disputes arose about the entire electoral slates of Florida, Louisiana,
and South Carolina, and about one elector from Oregon.2 With all
* Professor of Law and Class of 1966 Research Professor, University of Virginia. Thanks are
due to participants in faculty workshops at the University of Virginia (especially Caleb Nelson,
who served as commentator) and the University of San Diego. Jean Swieca provided excellent
research assistance.
1 Wisconsin's problem in 1856 came before the joint session of the two houses that met in
February 1857 to count the electoral votes. See CONG. GLOBE, 34th Cong., 3d Sess. 651-653
(Feb. 11, 1857).
The Constitution gives Congress power to set the day on which the electors are to vote,
which Day shall be the same throughout the United States. U.S. CONST., art. II, § 1, para. 4.
The same provision authorizes Congress to set the Time of chusing the electors, id., which by
implication need not be a single day.
Section 1 of title 3 of the United States Code, which designates the first Tuesday after the
first Monday in November as the time for choosing electors, derives from an 1845 statute that
provided the same date. Act of January 23, 1845, ch. i, 5 Stat. 721. The 1845 statute also
contained the ancestor of 3 U.S.C. 2, which authorizes state legislatures to provide for the
choosing of electors when a state holds an election on the date set out in Section 1 but fails to
make a choice on that day. The predecessor to Section 2 was included in the 1845 legislation
at the instance of Representative Hale of New Hampshire, which State at that time required an
absolute majority for the election of electors. See CONG. GLOBE, 28th Cong., 2d Sess. 14 (Dec.
9, 1844). Absent a permission like that contained in Section 2, such a State could hold an
election, fail to select electors because no slate received an absolute majority, and be unable to
hold a run-off because the time for choosing the electors had passed. Id. (As the foregoing
indicates, proponents of action under Section 2 by the Florida legislature in the recent
confusion had to take the position that the Bush electors had not been chosen on election day
2 Reconstruction was at its tag-end in 1876. Elections in the south were marked by
violence, fraud, and bitter disputes about the returns. In all three of the disputed southern


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