What exactly do 2 U.S.C. §§1 and 7 and 3 U.S.C. §1 say about Election Day and electors?
Executive summary
The statutes say plainly that Congress set a uniform day for federal elections: 2 U.S.C. § 7 fixes House elections to “the Tuesday next after the first Monday in November” (commonly called Election Day) and 2 U.S.C. § 1 ties Senate elections to that same timing, while 3 U.S.C. § 1 says “The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day” (establishing the day for choosing presidential electors) [1] [2] [3].
1. What the statutes literally say about Election Day and electors
The plain text of 2 U.S.C. § 7 prescribes the date for House elections as “the Tuesday next after the first Monday in November” in even-numbered years, and 2 U.S.C. § 1 operates to place Senate elections the same day as the next preceding House election that comes before a Senator’s term expires [1] [2]. 3 U.S.C. § 1 states succinctly that presidential electors “shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day,” preserving a uniform day for appointing electors while deferring mechanics to state law enacted before that day [3] [4].
2. How the statutes have been read: casting versus receipt of ballots
Legal debate and recent court filings show a key interpretive split: some courts and scholars read these statutes as setting the date by which voters must cast their choices — not necessarily the final date by which ballots must be received by officials — meaning ballots mailed or cast on Election Day but arriving later can still be counted if state law so provides (the “cast-by” reading), while other litigants argue for a stricter “received-by” interpretation that would bar counting ballots arriving after Election Day [5] [2] [6]. Federal courts, state courts, and academic commentators have repeatedly noted that historical practice, statutory text, and precedent inform competing conclusions about whether “appointed… on election day” fixes the moment of voters’ choice or the administrative deadline for counting [6] [7].
3. What the Electoral Count Reform Act of 2022 changed (and what it left alone)
Congress’s 2022 reforms—often labeled the Electoral Count Reform Act—reworked parts of the presidential-elector statutes and clarified that states must appoint electors on the designated Election Day while allowing states that conduct popular elections to “modify the period of voting as necessitated by force majeure events” if such modifications are provided in state law enacted prior to Election Day; the Act also removed the old backstop that let legislatures appoint electors if a state “failed to make a choice” [8] [9]. The statutory amendments replaced some prior language and emphasized that state laws enacted before Election Day govern how a state may extend or modify voting periods in extraordinary circumstances, narrowing—but not eliminating—disputes about late-arriving ballots [10] [9].
4. How this plays out in practice: mail ballots, litigation, and hidden agendas
Practically, the statutes leave significant room for state law to determine whether ballots cast on Election Day but received later count, which has been the locus of litigation and political advocacy: challengers seeking a uniform “received-by” rule often argue for stricter federal enforcement, while voting-rights advocates point to statutory history and court decisions supporting the cast-by reading and to the ECRA’s preservation of state law flexibility for emergencies [2] [9] [7]. Advocacy and litigation frequently carry partisan aims—states and groups pressing for postmark-or-receipt rules tend to benefit different electorates—so statutory language that defers operational rules to preexisting state law invites both legitimate administrative variation and strategic challenges that courts must resolve [2] [9].
5. Bottom line for Election Day and electors
The federal statutes establish a uniform Election Day date for congressional contests and require that presidential electors be appointed on that day, but they deliberately leave mechanics—whether “appointed on election day” means ballots must be received by that day or merely cast by that day—to state law enacted before Election Day and to judicial interpretation; the 2022 reforms tightened the framework (including a narrow carve-out for extraordinary “force majeure” adjustments) but did not impose a single nationwide rule resolving the cast‑by vs. received‑by question [1] [3] [9] [2].