Foster v Love (1997) By Charles Taylor

Although I spend much of my spare time reading US SCOTUS decisions, sometimes deep into the night, even doing all-nighters, being so obsessively fascinated, I did not know about this one, Foster v Love (1997). It might be a game changer for Trump:

When the federal statutes speak of ‘the election’… they plainly refer to the combined actions of voters and officials meant to make a final selection of an officeholder… By establishing a particular day as ‘the day’ on which these actions must take place, the statutes simply regulate the time of the election, a matter on which the Constitution explicitly gives Congress the final say.”  Foster v. Love, 522 U.S. 67, 71-72 (1997)

We will take a closer at this binding precedent below, but in preview, please understand that it emanates from a 9-0 decision of the United States Supreme Court, wherein the entire Court joined, not just the outcome, but also the opinion on this very point.

The voters vote.  The officials count.  These combined actions form “the election,” and the election must be decided on the day.  States that failed to make a final selection of officeholder by midnight after Election Day have violated the statute, subjecting the nation at large to the very evils Congressionally mandated deadlines were drafted to prevent. 

Federal Election Day statutes were designed to curtail fraud, and to infuse a prima facie sense of integrity in our electoral process.  But these States – in failing to obey Congressional deadlines – have flagrantly attempted to preempt federal law.  This is certainly prohibited, and this is why the late election results are void. 

Citizens may file actions in the Federal District Courts and appeal all the way to the Supreme Court.  Get this information to your State Representatives and Senators.  Forward it to the White House if you know anyone with connections.  Blog it.  Video it.  Podcast it.  Share it in comments, please.  The President’s team has not made this argument yet.  They have not plead it.  And they must get up to speed. 

You were disenfranchised by the failure of States to follow federal law. 

Your pursuit of happiness is directly infected.  You have a cause of action. 

This is the peaceful, legal battle plan of the Republic.  Let’s roll.

Suspend disbelief.  I’m not stretching on that headline. I honestly do not believe the Supreme Court can avoid nullifying the Presidential Election… if President Trump, and some of you too, will plead this in court.

My previous report discussed the plenary authority of State Legislatures to determine how Presidential Electors are appointed.  Consider this Part 2. 

3 U.S.C. § 2 kicks the decision back to the State Legislatures after a failed election renders the previous results void.  Failed elections nullify all votes, not just some votes, not just late votes, not just illegal votes.  The election itself is void in late States. 

Which States are late?  The answer will be a question of first impression for the Supreme Court.  But the only fair answer is obvious.  If, at midnight, one candidate had enough of a lead, so that there was no mathematical possibility whatsoever of their being caught – after a review of the votes already counted, and the votes remaining – then the final selection has been made on time.  But if the outcome was uncertain at Midnight, the State violated the deadline, and its election is void. 

This hard mathematical rule will motivate States to develop better comprehensive procedures, and to commit sufficient monetary resources to safeguard our elections from despair going forward.  Perfect elections are possible, and developing them is a fundamental purpose of paying taxes.  We are a wealthy nation.  Get it right.

As to Representative and Senate races, the statutes mandate subsequent elections, but as to presidential electors, 3 U.S.C. § 2 provides a deadline extension to the State Legislatures alone to determine – “in such manner as the legislature of such State may direct” – which electors shall be appointed.  This statute simply reiterates the plenary authority in the United States Constitution.

We should find out soon what the State Legislatures will do, because the United States Supreme Court is about to nullify the results of this election in every State that failed to report a clear winner before November 4th.


At this point, you may be wondering, if my analysis above is correct, why the election in Bush v. Gore wasn’t void?  It’s a very good question.  That nightmare dragged on for 37 days, finally settled by a nebulous opinion, just as the Florida Legislature was getting ready to use the nuclear option to seat Bush electors via bicameral resolution.  Incredibly, the answer to this very relevant question is shockingly simple:

That election wasn’t void because nobody asked the court to void it. 

Question: Why would Congress create the “safe harbor” protections listed in 3 U.S.C § 5, if not for settling election contests by State statutes that call for multi-day recounts?  Doesn’t 3 U.S.C. § 5 imply that Congress condones presidential elections extending past the Midnight deadline?

Answer: No, it does not.  Rather than condoning late elections, it condemns them.  3 U.S.C. §1 was specifically designed to prohibit multiday elections.  See the graphic below (Congressional Globe, 28th Cong., 2d Sess., at 14, December 9, 1844 (Mr. Duncan)), where both the “intention”, and the “object, of the bill were stated:

“The first section of his bill simply declared what its intention was—that, from and after the passage of this act, all regular stated elections for the choice of electors of President and Vice President of the United States shall be held on the same day, and on one single day, in all the States of the Union.”

“The object of the bill was to prevent frauds at the ballot box as in 1840; but such frauds could not occur in South Carolina, for she elected her electors by her legislature; consequently there was no chance for pipelaying.”

Pipelaying.  Indeed: 

“Congress in 1844 and 1845 was, however, concerned about the allegations of fraud and corruption in the previous election (1840) for electors for President and Vice President in several states.  It was asserted that some of the particular misconduct in that election appeared to have been encouraged, in part, because the states had differing dates for the presidential election, which allowed the alleged movement of populations and voters to key states having later elections (described as ‘pipelaying’)”.  (U.S. Congressional Research Service. Postponement and Rescheduling of Elections to Federal Office (RL32623; Sept. 5, 2014)

I think Georgia is getting ready for some pipelaying in Senate run-offs. 

3 U.S.C. § 5 was unfortunately misconstrued by the Supreme Court in Bush v. Gore, because the safe harbor statute should only be applied as to disputes within a State Legislature.  That branch alone has plenary authority to determine who the State appoints as electors.  If there is no dispute in the Legislature, their chosen slate of electors must be appointed by the State.  Therefore, the only “State authorities” who may engage Constitutionally in such a controversy are Representatives and Senators.

State elections that fail to choose winners by the Midnight deadline enacted in 3 U.S.C. § 1, immediately trigger the authority of 3 U.S.C. § 2, giving the Legislatures alone a Congressional extension to choose electors thereafter. As such, the failed elections are void, and all State statutes drafted to discern a winner after Election Day are preempted by 3 U.S.C § 1, and § 2. 

Having plenary authority, there can only be a controversy between the State House and Senate, should the House choose one slate of electors, and the Senate a different slate.  The safe harbor of 3 U.S.C. § 5 will treat as conclusive a determination guided be previous State law, if such law is enacted prior to Election Day to settle this specific dispute, and the determination is made at least six days before the safe harbor date.  But if there is no State law to cover a bicameral dispute, 3 U.S.C. § 15, gives explicit instructions how to proceed.

The evidence of the veracity of this analysis is located in the very text of 3 U.S.C § 15:

“[B]ut in case there shall arise the question which of two or more State authorities determining what electors have been appointed, as mentioned in section 5 of this title, is the lawful tribunal of such State…”

As to the choosing of presidential electors, only two possible tribunals have authority to choose according to the United States Constitution; the State House of Representatives; or, the State Senate.  If the controversy between them is not settled by the safe harbor in section 5, then section15 provides that the two houses of federal Congress will decide, and if they are split, then the determination is made by the slate of electors certified by the Governor acting as a tie breaker.  This is why section 15 contemplates “two or more State authorities” sending different slates.  You could also imagine that various plurality cliques of Representatives and Senators might form, causing any number of slates to be forwarded. 

However, I’m not convinced at all that 3 U.S.C § 5, and, 3 U.S.C. § 15, are Constitutional.  I don’t see where the Constitution gives Congress any authority to determine the manner of choosing presidential electors, while these sections both do exactly that.  Congress has plenary authority over the time, and none as to the manner.


Courts exercise judicial restraint by refraining to alter pleadings or grant relief not sought therein.  This principle is firmly embedded in our system of Government, and the Supreme Court recently restated this principle in April, when it shut down the Court of Appeals for the 7th Circuit, after that bench extended the presidential primary voting deadline by six days.  Justice Kavanaugh wrote the opinion:

“[T]he plaintiffs themselves did not even ask for that relief in their preliminary injunction motions. Our point is not that the argument is necessarily forfeited, but is that the plaintiffs themselves did not see the need to ask for such relief. By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the District Court contravened this Court’s precedents and erred by ordering such relief.   140 S. Ct. 1205, 1207 (2020).

(This case concerned a primary, not a general election for presidential electors.  And so the State was not constrained by the Midnight deadline set forth in the federal Election Day statute, 3 U.S.C. § 1, but only by previously enacted State law.)

Success in the law is based on using magic words.  It really is.  If you don’t use them, the court has no obligation to fix your pleadings.  But if you know the spell, and you know how to cast it on paper, miracles can happen.  Revolutionary arguments surface even when long standing practices appear to have firm judicial support. 

In this case, the preempted behavior was failing to decide the elections “on” Election Day.  Presidential electors must be appointed by midnight on Election Day, not at some ever-changing time untamed by federal reach.  We have a Congressional statute which is completely unambiguous, but it’s never enforced in Presidential Elections. Regardless, a terrible habit doesn’t nullify a good law.         

The elections for President in Pennsylvania, Michigan, Georgia, Arizona, Wisconsin and Nevada were void at the stroke of midnight after Election Day, because a victorious candidate wasn’t discerned by Midnight.”  

This could well be Trump’s legal strategy. I have also heard it argued that SCOTUS is likely to favour Trump because Beijing Biden has not ruled out stacking the Supreme Court, and that strategy is likely to be unpopular, eroding existing judicial power. We will soon see where all of this leads.




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Tuesday, 23 July 2024

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