I've been thinking about Justice Kavanaugh's now-infamous footnote in which he made up some new requirement that to be constitutional states must be able to "definitively announce the results of the election on election night." If Kavanaugh's position became the majority, it would not be based on anything in the Constitution. In fact, I believe that no state has ever "definitely announced" its election results on election night any Presidential election in the history of the United States.
The election law in 46 states have a deadline for that the state to certify its election results. Per those laws states officially announce their results in the weeks following election day although the particular date varies. Oklahoma has the shortest period and certifies the results 7 days after the election. California has the longest period and can certify as long as 39 days after the election). Most states certify 2-4 weeks after election day. Four states (Hawaii, New Hampshire, Rhode Island, and Tennessee) have election laws that just say they need to certify the results as soon as the results are done, without a specific deadline. However, each state needs to have their presidential election fully decided in time for the state to determine and send its electors to the meeting of the electoral college which, according to federal law, takes place on the Monday after the second Wednesday in December (December 14 in 2020).
If Kavanaugh's view expressed in the footnote became the majority decision, each of those election laws would be struck down as unconstitutional, as would every state's provisions concerning recounts or recanvasing the vote, which effectively could not be completed before midnight on election day. Currently, states don't ever announces its result on election day, those calls are made by the media who project the winner based on data released by the state as they count the votes. Under the Kavanaugh rule, states would have to start doing that. Again, that is something states have never done before. All of these new election requirements would be based supposedly on the requirements of the U.S. Constitution, even though Kavanaugh hasn't pointed to any constitutional provision that would require that, and in the past 231 years no one else (no Justice, no constitutional scholar) has ever to my knowledge identified any portion of the constitution that would even hint to an election-day results for each state. Indeed, such a result was probably practically impossible at the time the constitution was written, so there is little doubt that none of the founders had anything like an election day result in mind.
Strict constructionism!
