Many Americans know that counting all of the votes in this November’s presidential election is going to take extra time. Few people realize there’s a specific deadline by which states must finish.
The 1887 Electoral Count Act seems like an obscure piece of political trivia. But ahead of what could be one of the most contested presidential elections in modern history, some experts worry that this 133-year-old relic of the U.S. Code could endanger the whole republic. The law itself is a relic of the last time the partisan divide got so intense that it nearly ripped apart the country. But no one ever clarified the bits of it that are ambiguous, and no one ever came back to revise or update it. The law is a “morass of ambiguity, which is the exact opposite of what is required in this situation,” a group of legal scholars convened by UC Irvine wrote in an April report of possible election problems. But it’s still the law.
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.