This is what I never understand --
November election results are delayed and confused, and the mail-in ballots muddy the water, and it just becomes an impossible situation. No one can say for sure who won the Presidential race, or how the Electors can be chosen.
And exactly how are the results for the House and Senate more clear?
How does "The newly elected House and Senate" certify the Electoral College in the January? We have no way of knowing who the House and Senate are -- right? Speaker of the House?? Who dat???
It is implied (although not actually explicitly provided in the Constitution) that a representative’s term ends on January 3 and that the seat becomes vacant if no one is elected for the next term. The filling of vacancies in the House is governed by the Constitution, which requires state governors to issue “writs of election,” and 2 U.S.C. s. 8, which recognizes that a vacancy can be “caused by a failure to elect at the time prescribed by law.”
Under that statute, special elections to fill vacancies are governed by state law, except there is a specific federal procedure for expedited special elections in “extraordinary circumstances,” which occur when when “the Speaker of the House of Representatives announces that vacancies in the representation from the States in the House exceed 100.”
The Speaker’s announcement of vacancies can be challenged by a suit filed in the federal court of the district where a vacancy was announced (potentially over 100 lawsuits), which must be filed within 2 days and is heard by a 3-judge panel, whose ruling is final and not appealable. Potentially, the outgoing representatives could challenge the vacancy and argue, among other things, that because the Constitution does not specifically state when a representative’s term ends, their term does not end until a replacement is duly elected.
There are fewer statutes governing Senate elections. The Constitution originally provided that the Senators’ seats were vacated at the end of their terms, but this language appears to be superseded by the 17th Amendment. The 17th Amendment provides that vacancies are filled by “writs of election” issued by the state governors, but does not provide for any special expedited election of senators.
Of course, one must also remember that, under Article I, Section 5, “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members.” The Supreme Court has held that this clause “gives final and exclusive jurisdiction to each House of Congress to determine election contests relating to its members,” and such determinations are not subject to review by the courts.
I’m sure you can see quite a few avenues for mischief in all of this...
The Electors are chosen by the State Legislatures. There is no such thing as a "Presidential race" in the Constitution, and it is completely unnecessary for the appointment of Electors.