Michael Morley has posted this draft on SSRN. Here is the abstract:

Federal Election Day didn’t just happen. Instead, it reflects the culmination of a series of federal laws enacted over the course of nearly a century that each set a uniform time for a different type of federal election. These laws grant states flexibility to hold federal elections at a later date if there is a “failure to elect” on Election Day. Earlier commentators have argued that these “failure to elect” provisions are narrow, and only authorize runoff elections in states that require candidates to receive a majority (rather than plurality) of the vote to win.

Based on a detailed examination of these provisions’ text, legislative history, and history of judicial application, this Essay argues that federal Election Day laws, including their “failure to elect” provisions, empower states to postpone or extend federal elections when an unexpected emergency prevents them from conducting or concluding a federal election on Election Day. A court may also order the postponement or extension of a federal election when necessary to prevent a constitutional or statutory violation. The Supreme Court has emphasized that courts generally should not grant such relief at the last minute, however, although unexpected emergencies may sometimes render it necessary. And a court may not order an election postponement or extension unless other, less extensive changes to the rules governing the electoral process are insufficient to remedy the constitutional or statutory violation. In the hierarchy of electoral remedies, a postponement or extension is a severe, disfavored remedy—particularly in the unique context of presidential elections—that should be employed only when other alternative would be ineffective.

Looking forward to reading this!