The measure originated in the aftermath of the 1876 presidential election, between Rutherford Hayes and Samuel Tilden, which decided the fate of Reconstruction in the American South. The law requires electors to be chosen for the Electoral College, the constitutionally established body that elects the president, no more than 41 days after Election Day. This year, that date is December 14, 41 days after the November 3 vote. But the expected massive delays in vote counting—because of late-arriving absentee ballots, because of disputes over which of those ballots are valid, because of overwhelmed state election systems, because of recounts, or because of X factors such as direct election interference by foreign or domestic attackers—could mean the country blows past that date without clear results in every state.
By the simplest reading of the act, whoever is ahead on December 14 gets the electors and, with them, the presidency. Many analysts believe that President Donald Trump will appear to be ahead during the early vote-counting—a fact that creates an incentive for him to slow the counting as much as possible. Trump made very clear that he’s going to say mail-in voting is “rigged,” and that he will claim invented conspiracies if he is behind: “I think I did win the popular vote, in a true sense,” he told Laura Ingraham on Fox News last week, still trying to rewrite the clear history of 2016. “I think there was tremendous cheating.”
Could legal creativity and troublemaking slow the voting down enough for Trump to still be ahead on December 14—even if more Americans vote for Joe Biden?