Both Article 2 of the US Constitution and 3 USC Chapter 1 talk about "appointing electors".

However, 3 USC Chapter 1 clearly refers to the election day (this is when "appointing electors" must happen!), while the US constitution has no concept of popular vote in a presidential election. This seems contradictory, w.r.t. what "appointing electors" means.

(I think the precise meaning of "appointing electors" is crucial to understanding when a contingent election is triggered, which is what TX vs PA et al was aiming for, it seems)


The electors being "appointed" simply means that they are chosen for that office. They may be chosen by election, they may be chosen directly by a state legislature, some other mechanism might be used. The Constitution leaves that entirely to the states.

3 U.S. Code § 1 says:

The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.

When it says "every election of a President and Vice President" it means the vote of the electors. Thus it says that the electors are formally appointed four years after the previous set has done so.

3 USC § 7 goes on to say:

The electors of President and Vice President of each State shall meet and give their votes on the first Monday after the second Wednesday in December next following their appointment at such place in each State as the legislature of such State shall direct.

So they are appointed in November, and then vote in December.

3 USC Chapter 1 does not refer to "election day" in any sense meaning a popular election

Note that these code sections dates from 1948.

The Federalist #68 says, in relevant part:

It was desirable that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided. This end will be answered by committing the right of making it, not to any preestablished body, but to men chosen by the people for the special purpose, and at the particular conjuncture.


A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations.


Another and no less important desideratum was, that the Executive should be independent for his continuance in office on all but the people themselves. He might otherwise be tempted to sacrifice his duty to his complaisance for those whose favor was necessary to the duration of his official consequence. This advantage will also be secured, by making his re-election to depend on a special body of representatives, deputed by the society for the single purpose of making the important choice.

All these advantages will happily combine in the plan devised by the convention; which is, that the people of each State shall choose a number of persons as electors, equal to the number of senators and representatives of such State in the national government, who shall assemble within the State, and vote for some fit person as President. Their votes, thus given, are to be transmitted to the seat of the national government, and the person who may happen to have a majority of the whole number of votes will be the President. But as a majority of the votes might not always happen to centre in one man, and as it might be unsafe to permit less than a majority to be conclusive, it is provided that, in such a contingency, the House of Representatives shall select out of the candidates who shall have the five highest number of votes, the man who in their opinion may be best qualified for the office.

(emphasis added)

The above makes it clear that popular election was expected to be used to choose the electors, although it was not used by all states at first, and was not invariable until after 1860.

  • Kind of a separate question, but if 3USC1 mandates voting on (Nov 3), how can absentee voting be legal? – bobcat Dec 12 '20 at 4:15
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    @MaxB It is a separate question and should be asked as such. But 3USC1 does not mandate voting on any date or indeed at all. It simply mandates that the electors be appointed on a certain date. Voting is mandates by the various state election laws, which permit absentee voting, and specify the rules for it. – David Siegel Dec 12 '20 at 5:36
  • If "appointing electors" means "choosing electors", then absentee voters are "choosing" them on the wrong dates. OTOH if "appointing electors" means something else, I can see why this reasoning might not apply. – bobcat Dec 12 '20 at 5:38
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    @MaxB No one voter chooses an elector, the votes of all together do. All votes are supposed to be cast on or before the formal election day, and on that date the choices have been made and the appointment in theory occurs. Who is appointed may not be known for several days. Even if there were no absentee ballots it might take more than a day to tally all votes. 3 USC 5 establishes the "safe harbor" date of 6 days before the vote of the electors. As long as state procedures settle all conflicts and controversies by that date, they are final. – David Siegel Dec 12 '20 at 5:47
  • You should also read 3 USC 2. – user6726 Dec 13 '20 at 18:54

I will only address the end of the question by @MaxB about whether a failure of a state to appoint valid electors reduces the number of Electoral College votes required to achieve a majority. An article by Edward-Isaac Dover in The Atlantic dated September 9, 2020, states

If Pennsylvania’s electoral votes can’t be counted, does that mean that being picked as president requires the same 270 electoral votes as normal, or merely 260 (a majority of the total without Pennsylvania)? The experts don’t even agree on whether there’s a clear answer.

Others may disagree, but if a respected author in a respected magazine says there is no clear answer, opinions in an Internet forum are not going to convince me otherwise.

  • Indeed. I am quite confident in my analysis that failure to appoint electors should change the majority threshold, but I am not at all confident that the people actually counting the votes would see it that way. – phoog Dec 13 '20 at 22:20

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