Original posting: 5 June 2009


May a State ever again regularly elect, by law,
its U.S. Senators and Representatives
in Congress on a date other than Federal Election Day
(the Tuesday next after the first Monday in November)?

by RICHARD E. BERG-ANDERSSON: TheGreenPapers.com Staff


Before we attempt to answer this question, let us- at the start- quickly define what we mean by "regularly elect, by law" in the above header:

"regular election" is the "all up" election of all of a State's Members of Congress to their full terms (2 years for those elected to the U.S. House of Representatives; 6 years for a United States Senator) at the same time throughout the State; since the term does not embrace election to fill out the remaining term of office re: a seat that has been vacated, "regular election" does not- by very definition- at all include Special Elections...

"by law", meanwhile, means the regular election is set by either a specific provision in the State's own Constitution or statutory language contained in a State's own Election Code: the date of the election so legally set is the "normal", or usual, date on which the election in question (in the case of this discussion, Congressional elections) is scheduled to be held. Obviously, extraordinary and otherwise exigent circumstances could compel an election to be temporarily moved to a different date on occasion (say, a natural disaster occurring just before, or on the day of, an election scheduled by law; Congressional elections have, from time to time, been delayed by court order beyond the date set by Federal statute in 2 USC 7 due to an issue involving a legal challenge to a reapportionment of House seats, for example) but the question up for discussion herein does not at all contemplate such things.

Essentially, the question posed by the header to this piece is asking if a State could still, in open defiance of 2 USC 7 [which sets the Tuesday next after the first Monday in November as the date on which United States Senators, members of the U.S. House of Representatives from the several States- and, yes, even Territorial Delegates or their equivalent (Resident Commissioners from the freely-associated non-State Commonwealths)- must be, under ordinary circumstances, elected], legally adopt a date for regularly electing Members of Congress other than that provided in 2 USC 7.

Foster v. Love [522 U.S. 67 (1997)], the Federal case which ruled unconstitutional Louisiana's holding an "Open Primary" (which could conceivably elect someone to office without the ensuing "General Election"= "runoff") on a date earlier than that set in 2 USC 7 (for two decades, Louisiana used the Federal statutory date in 2 USC 7 for the second "runoff" election) has, for all intents and purposes, put the ol' "KI-bosh" on any future attempt by a State to change the date of their Congressional elections through legislation only. Louisiana's "Open Primary" for State and local offices was, of course, unaffected by this decision and, at first, the Pelican State simply moved its "Open Primary" (the first of the two possible Federal elections) to the Tuesday next after the first Monday in November and moved the "runoff" back to early December, which brought the State back into compliance with 2 USC 7.

Louisiana's "transgression", as it were, was- however- put into State law by statute: thus it is clear that, where a State attempts to change its date for choosing its elected representatives to the Federal Government by mere legislative act, this will not at all pass constitutional muster: such is the effect of the decision in Foster v. Love. Simply put: if you attempt to evade the mandate of 2 USC 7 by statute, the answer is "No!"

But what about if a State, once again, might enshrine a different date for Federal elections in its own State Constitution? An interesting question that, if nothing else, gets us into some interesting- albeit arcane- American political history (but since when has being arcane ever stopped The Green Papers from posting it? [;-)]):

The last State to have a different constitutional date (State Constitution, that is) for its Congressional elections from that set by 2 USC 7 was MAINE, which continued to elect its Senators and Congressmen in September, the same time as its State elections, through 1958. Only when an amendment to Maine's own Constitution took effect beginning in 1960 did all States of the Union now hold their Congressional elections on the same day.

Yet, if only in retrospect, there is a question- albeit one with an answer of no practical effect- as to whether or not what Maine was able to do well past the mid-20th Century was actually legal! (The simplest answer, by the way, is, of course, "yes, it was legal"- if only because no one with the authority to do so ever said it was not during all the time Maine held its Congressional elections separate in time from those held by every other State [in other words, Maine never got caught! ;-)]; but this is not what we are contemplating here-- what we're really asking now is if what Maine did through 1958 should have been seen as legal and constitutional in the first place).

To fully understand the issues behind this latter question (and, through this, also take on the broader question posed in the header to this very piece), we have to understand what happened, around the period of time in which these were drafted and adopted, as regards the Federal statutes governing the time of holding Congressional elections:

As noted in the explanatory verbiage above the table to which this piece is linked, there were two Federal statutes governing the time of Congressional elections enacted in sequence: the first, 17 Stat. 28, included a mandate that the Tuesday next after the first Monday in November (already used as the date for what was- in every State by the time this statute was adopted- the popular election, every four years, of Presidential Electors who would later meet in Electoral Colleges in each State in order to cast the determinative vote for President and Vice- President) be the date used throughout the Nation for Congressional elections as well; the second, 18 Stat. 400, made sure that the first was permanent (since the first statute's electoral provisions had been grafted onto a Reapportionment Act that would only be effective for ten years) and, further, added a new provision that, where a State held its own elections on a date other than the Tuesday next after the first Monday in November as a result of a provision in its own Constitution, it could continue to use the differing date in its own Constitution for its Congressional elections until said State's Constitution could be amended through its own Amendment procedures.

17 Stat. 28 became law on 2 February 1872, while 18 Stat. 400 became law on 3 March 1875... and, yes, these dates are important to note because of what would happen to Federal law as a whole in between them- the sequence of events which will now be recounted:

The principal collection of Federal law (as opposed to regulations promulgated by Federal executive departments and agencies) has ever been the United States Statutes at Large (usually referred to as, simply, the Statutes at Large). This is simply a multi-volume compendium of all the Federal statutes, Treaties made under the authority of the United States and such things as Presidential Proclamations compiled more or less chronologically from the very beginning of the Federal Government back in 1789. Statutes at Large are cited as x Stat. y where 'x' is the volume and 'y' the page number on which the particular law begins as headed by its official title (thus, 17 Stat. 28 is found at page 28 of volume 17 of the Statutes at Large; likewise, 18 Stat. 400 is at page 400 of volume 18-- official titles of Federal statutes are usually something along the lines of "An Act to [blah, blah, blah] and for other purposes").

Absent other factors (which we will get to shortly), the text of a Federal law as found in the Statutes at Large is that which would usually be considered to be controlling by the courts in any legal dispute involving said law (but see below) because each volume of the Statutes at Large is made up of laws collected from the actual original documentation (in the case of Federal statutes, for instance, these would be the engrossed bills which- once passed by Congress- are actually sent to the President of the United States for his signature or possible veto; once signed by the President- or, if vetoed by him, assuming a successful override of the veto by Congress- these engrossed bills become the basis of the printed "session laws" which are then bound together to eventually make up one volume of the Statutes at Large [the practice nowadays is that each volume covers a year: for example, if the reader will take a quick look at the very bottom of the page at the URL http://www.thegreenpapers.com/Hx/PresidentialElectionEvents.phtml, he or she should so easily see that statutes enacted 8 years apart are also 8 Statutes at Large volumes apart, while statutes adopted 12 years apart are separated by 12 volumes; however, this is a modern practice: the earliest volumes of the Statutes at Large covered years at a time-- for instance, the Federal statute first setting the date for Presidential Elections can be found at page 721 of volume 5, yet it had been enacted in 1845, more than 55 years after the laws with which volume 1 begins (in 1789)!]).

The problem with this collection (now- in 2009- going on 123 volumes and counting) is that it is not codified- that is, it is not at all arranged by subject matter; in order to find a particular statute, one would have to know when it was adopted (and then find it in the volume of the Statutes at Large covering that period of time) or one would have to consult published indexes indicating what the x Stat. y citation for a particular law covering a particular subject might be (fortunately for those who use this website, we at The Green Papers principally utilize Statutes at Large citations for Federal statutes as a matter of style so that you, the site's users, can go and look them up for yourselves at any good research library, where you might not be able to first find them on the Internet!)

By the 1870s, the lack of just such a codification was becoming a real problem as more and more Federal legislation was being adopted as time went on. To this end, Congress- on 22 June 1874- authorized the very first codification of Federal law: the Revised Statutes of the United States (often simply referred to as the Revised Statutes) which consisted of all permanent statutes created by Act of Congress (statutes of temporary effect- such as individual appropriations [which are almost always limited to the fiscal year] or things such as private laws- were not so codified) in effect as of 1 December 1873, which happened to be when the 43rd Congress that so authorized the Revised Statutes had itself first convened.

There were three principal problems, right off the bat, with this new Revised Statutes compilation:

First: although, for the first time, permanent Federal statutes were now arranged by subject matter, there were no Titles and chapters as such: instead, every section of every Federal statute was given a consecutive section number in the Revised Statutes. Yes, there were headers indicating the subject matter of a block of consecutive Revised Statutes sections but these had no function as regarded citation of a law found therein (thus, a law therein would be cited as R.S. n where 'n' would be the section number: section 3 of 17 Stat. 28 found itself embedded in the Revised Statutes as its section 25- or, as cited, R.S. 25- because laws related to Congress, including elections thereto, were among the very first subjects treated by the codification [but Civil Rights legislation, then a relatively new field in those days of post Civil War Reconstruction were- for instance- given R.S. sections numbered in the 5500s]).

Second: there was no system of "continuous revision" implemented in relation to the Revised Statutes. Put another way, the text of the Revised Statutes was "locked in": there was no way to add sections from statutes enacted after 1873 in their proper places in between R.S. sections (thus, there could never be, say, a section 25a including the later changes made in 17 Stat. 28 by 18 Stat. 400: when, for example, a book such as The Law of Suffrage and Elections in the several States by M.D. Naar, Esq. [published in 1880] provided an Appendix containing all the Revised Statutes sections relevant to the conduct of Federal elections, the author was forced to note- in brackets immediately following the Federal Election Day set by R.S. 25- that "[t]his last section has been modified so as not to apply to states that have not changed their day of election and that cannot do so until their constitutions are amended" [because 18 Stat. 400, which so provided, had been enacted after the late 1873 cutoff date for the Revised Statutes]).

As time went on, this situation became more and more untenable (more than fifty years after the Revised Statutes had first been authorized, it still remained the official codification of United States law and, in order to find the definitive text of Federal legislation enacted after 1873, one had to go to the Statutes at Large as one would have had to have done in the days before the Revised Statutes itself existed; moreover, the text of the Revised Statutes contained more and more laws- as more and more time passed- which had since been either altered or outright repealed!). Private companies published indexes linking post-1873 legislation to the relevant R.S. section; other private publishers issued their own (unofficial, however) compilations of Federal laws by subject matter. But what was really needed was a whole new system of official codification.

This would come with the United States Code- authorized by Congress on 30 June 1926. The United States Code would be cited by Title (there would be 50 of these numbered alphabetically by subject matter, section numbers beginning anew with each new Title) and section (X USC Y would mean 'section Y of United States Code Title X'; thus, the 2 USC 7 I have been discussing herein is, simply, section 7 of Title 2 of this United States Code [Title 2's subject matter being "the Congress"), making Federal statutes much easier to locate; in addition, yearly string-bound supplements would be issued at least annually, with a new, complete hard-bound multi-volume edition of the United States Code made available every six years: therefore, unlike the Revised Statutes, there would ever be a process of "continuous revision".

But all of this was well in the future when 18 Stat. 400 was enacted in 1875 and there would, soon thereafter, be one more curious episode which will be that which causes us to now consider whether the exemption for States that had yet to alter their own State Constitutions in order to conform to the requirement that Congressional elections be held on the Tuesday next after the first Monday in November in even-numbered years was actually still- or, at least, should have still been- in force while Maine's Congressional election dates still differed from the Federally-mandated one as late as 1958:

This brings us, now, to the third problem with the Revised Statutes: for Congress intended them to be adopted as what is known as "Positive Law".

"Positive Law" is, to give the simplest possible definition of this term of legal art without being overly simplistic, Law specifically enacted by one with sovereign authority to make rules regulating the community. The term has two different levels of meaning:

The first level is to distinguish sovereign Law from other kinds of rule-making in society. The rules of, say, Baseball are, yes, "laws" (indeed, a balk is- in essence- an illegal move by a pitcher intended to deceive a base runner [when an umpire calls "balk", all runners advance one base unfettered]; thus, there is, indeed, an element of "illegality" within the rules of Baseball) but these rules of Baseball are not Positive Law: they simply govern the conduct of Baseball as a sport and do not at all govern the workings of political society; and no one would ever grant that those who make and modify the rules of Baseball have the same sovereignty as Congress or a State legislature!

Missing- or confusing- this distinction can lead to all sorts of consternation, as- for example- when two Baseball fans are discussing the fate of Barry Bonds' single season Home Run record set in 2001 (the question at issue being: if one can, somehow, definitively determine Bonds had, in fact, used steroids going into, or during, that season, should his record be expunged- or at least have an asterisk placed next to it- in the record books?)-- there is often an argument between said fans over whether Bonds possibly having used steroids in 2001 was, at the time, illegal:

yes it was--- but only if one is talking about Positive Law (re: which, both Federal and California [Bonds was with the San Francisco Giants at the time] law made- and, of course, still make- possession [and one cannot use that which he/she does not possess!] of steroids without a legitimate medical prescription a crime); however: in 2001, using steroids was not illegal as regards the rules of Baseball themselves (for there was no prohibition against the use of steroids anywhere in the Baseball rule book that season and, thus, there was no way for an umpire- even if he could, somehow, have known, for a fact, Bonds had been "juicing"- to prevent Bonds from standing in a batter's box in a Major League ballpark during a "championship game" [one that counts in the Standings, as opposed to an "exhibition game"] in order to face legal [there's that term in Baseball again!] pitches delivered to him as he stood at the plate with a bat in his hands: thus, any home run Bonds hit during that season was "legal" in terms of the rules of the game, even while its "legitimacy" might yet be questioned by said fans nowadays).

Meanwhile, in the National Football League, there are also rules- which are, again, the "laws"- of that sport... and yet, on any given Sunday, actions that- outside the stadium- would be considered Assault and Battery are regularly taking place on the field of play- and they all take place "legally"! But, again, this "legality" does not relate to what is legal under Positive Law any more than do rules which allow Casual Friday in the office but otherwise expect a certain decorum as to workplace dress on other days of the week.

But it is the second- more technical- level of Positive Law with which we are here concerned and that is this:

Let's, just for sake of this argument, take two (made up) States of the Union: Nirvana and El Dorado- both in an American West (albeit a West in some universe parallel to our own, for these two States cannot be found on any map of the United States in my possession! [;-)]).

Both States have an Election Code reads exactly the same- right down to the numbering of its chapters and sections (largely because Nirvana was once part of El Dorado when it was still a Territory; then El Dorado had applied for Statehood, but only after Congress had created a new Nirvana Territory out of the northern third of El Dorado; some time after El Dorado had been admitted as a State to the American Union, Nirvana was, likewise, admitted. Both States' Election Codes are lineal descendants of the election laws of the original Territory of El Dorado, thus the similarity); both States also have an equivalent of the Federal Statutes at Large (a generally chronologically collection of State laws- each State's "Session Laws") and an equivalent of the United States Code (a codification in which State laws can be found by Title, chapter and section- lets call these the "General Laws" of each State).

At about the same time, both States decide to amend their respective Election Codes. Nirvana does it piecemeal, by amending sections of the Election Code in individual pieces of legislation containing said amendments and enacted by its State legislature over time; on the other hand, El Dorado decides to create a completely new Election Code and enact it "all up"- that is, at once. There is now a crucial difference between the two sister States: in El Dorado, the Election Code, as amended, is "Positive Law" in the second sense we are concerned with; in Nirvana, the amended Election Code is not (even if the amendments adopted in each State happen to be exactly the same and alter an Election Code that read identically in each State before being so amended).

The difference may seem rather technical to the reader who is not an attorney, but here is what this difference means: in El Dorado, the text of the amended Election Code, as published in that State's "General Laws" is now controlling (that is: must be considered by the courts to be the intended text of a statute within the Election Code)-- put another way: in El Dorado, any conflict between the text in the "Session Laws" in which are found those portions of the Election Code not amended through the adoption of the revised Election Code and the text of the Election Code as it now appears in the "General Laws" is to be resolved, by the courts, in favor of that in the "General Laws" (a comma seen in the version of a statutory section in the "Session Laws" is not found in that same section as codified in the "General Laws"? Well, this merely means that there's no comma in that statute in El Dorado)...

in Nirvana, however, it's the opposite: because the amended Election Code in that State was not enacted as "Positive Law", the text of the "Session Laws" is still controlling as regards those portions of the Election Code of Nirvana not so amended. (That nasty little comma dating all the way back to something originally enacted by the old El Dorado Territorial legislature is, unlike the case in the modern State of El Dorado, still part of the statute in Nirvana... and, should that comma- or lack thereof- change the basic meaning of what is otherwise the very same wording of the very same sentence in both State's legislation, El Dorado and Nirvana may very well end up with differing interpretations, by its respective courts, as to what that very same worded statute might actually mean!)

In the case of the Revised Statutes of the United States, there were- as it turned out- so many errors in the original version as published (in 1875) that Congress- on 2 March 1877 (interestingly, on the same day that the final determination of the Disputed Election of 1876 was being made by the one-time only Electoral Commission)- authorized a commission to undertake a complete revision of the Revised Statutes (Congress appointing commissions to untangle rather knotty problems of governance seems to have been somewhat fashionable at that point in American History!), said revision- once presented by the aforementioned commission- being accepted by Congress in 1878 (thus, the second edition of the Revised Statutes is considered to be the definitive version).

Problem was: these Revised Statutes were intended to be "Positive Law" and, thus, it could be argued that R.S. 25- which did not include the exemption for States with constitutionally-mandated dates for elections other than the Tuesday next after the first Monday in November- as enacted as part of the authorization of the second edition in 1878 had effectively repealed the exemption provided in 18 Stat. 400 three years earlier (it is altogether interesting, where not also telling, that Naar's Law of Suffrage and Elections- cited above- provides no text of the exemption, even while it claims the exemption still exists in 1880 [in other cases re: which statutes on Federal election law had been adopted post-1873, Naar quotes these in full immediately following the relevant R.S. sections]-- was Naar not sure?-- was he hedging his bets? Equally telling is the fact that all States that still held their regular Congressional elections in odd-numbered years had, by that same year of 1880, amended their Constitutions so as to have their State elections conform to the Federal Election Day set by Congress [clearly these States- exemption or no- took Congress' intent in the legislation seriously enough to at least abandon regular Congressional elections in other than even-numbered years!]).

Whatever one wants to think about the retrospective legality/constitutionality of Maine still electing Senators and Congressmen on the second Monday in September into my own lifetime, it may simply be that- as long as Congressmen were being elected during the even-numbered, as opposed to the odd-numbered, year- no one was all that much concerned, certainly not concerned enough to challenge it in court. But it should be fairly noted that, when 2 USC 7 replaced R.S. 25 as the official, codified version of the Federal Election Day statute, the exemption for differing election dates enshrined in State Constitutions was nowhere to be found (and this was back in 1926, nearly 35 years before Maine was finally in compliance with 2 USC 7!).

As for now- when no State of the American Union, in the normal course of events, elects its Senators and Congressmen on a date other than the Tuesday next after the first Monday in November:

Again, Foster v. Love seems to have finally been the proverbial "nail in the coffin" for statutory non-compliance. Regarding constitutional non-compliance by a State, this is certainly a "dead letter" by now as well. The very wording of the exemption in 18 Stat. 400 (that Federal Election Day be inapplicable in States that cannot change the date of their elections except through amending their own Constitutions) seems to clearly imply an expectation that States would so change their State election dates not long after that statute had been enacted- that is: would, and soon, adopt such Amendments (the odd-numbered year States certainly soon did, so much so that no State has ever held an "all-up" regular election for its Congressional delegation in an odd-numbered year since 1879!)

Assuming that 2 USC 7 carries, within its verbiage, the very same intent- through its merely being a recodification of old R.S. 25- as that of the framers of 17 Stat. 28 back in 1872 (this intent being that, at some point, the entire Nation elect Congress on the very same day), then- so long as 2 USC 7 remains the Law of the Land- a State with a constitutional provision allowing it to elect its Members of Congress on a date other than the Tuesday next after the first Monday in November would probably meet the same fate as did Louisiana's statutory non-compliance in Foster v. Love.

Therefore, the best answer to the question posed as the very header to this piece is a resounding "No!"