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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 2000.) 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 699

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