[EL] 2 errors in "Trump Can't Cancel the Election. But States Could Do It for Him" / ELB News and Commentary 3/14/20

[John Koza]

There are two major errors in Mark Joseph Stern's article in Slate entitled
"Trump Can't Cancel the Election. But States Could Do It for Him" at
https://slate.com/news-and-politics/2020/03/trump-cancel-election-day-consti
tution-state-electors-coronavirus.html 

 

POST-ELECTION APPOINTMENT OF PRESIDENTIAL ELECTORS

The article is correct in saying, "It is perfectly constitutional for a
state legislature to scrap statewide elections for president and appoint
electors itself." 

 

However, the article in incorrect in saying, "It would also be
constitutional for a state legislature to disregard the winner of the
statewide vote and assign electors to the loser."

Any attempt to appoint presidential electors after the voters vote on
Election Day would be void because 

(1) The Constitution gives Congress the power to establish the day for
appointing presidential electors (Article II, section 1, clause 4); 

(2) Congress has exercised that power by specifying that presidential
electors be appointed on the Tuesday after the first Monday in November
(section 1 of title 3 of the United States Code); and 

(3) the U.S. Supreme Court explicitly noted in McPherson v. Blacker (146
U.S. 1 at 35, 1892) "Congress is empowered to determine the time of choosing
the electors."  

 

Thus, if a legislature doesn't like the choice of presidential electors made
by its voters on the federally specified day (November 3, 2020), it cannot
appoint a different slate of presidential electors afterwards.  

 

The "safe harbor" section of federal law (title 3, section 5) provides an
additional restraint on post-election changing of the rules by treating a
state's appointment of presidential electors as "conclusive" only if the
appointment is based on "laws enacted prior to the day fixed for the
appointment of the electors" (i.e. Election Day).

 

IN ALL 50 STATES, THE METHOD OF APPOINTING PRESIDENTIAL ELECTORS IS
SPECIFIED BY STATUTE - NOT A MERE LEGISLATIVE RESOLUTION 

The article says, "Republicans control the legislatures of 28 states.
Collectively, these states have 294 electoral votes.  Trump himself could
not cancel the entire presidential election. But he could ask these
GOP-dominated legislatures to cancel their statewide presidential elections
and assign their electors to him."

The method of appointing presidential electors today is specified by state
statute in all 50 states.  Thus, existing laws specifying the method of
appointing presidential electors (i.e., by popular vote) can only be
repealed by means of a legislative bill that is passed by the legislature
and presented to the state's governor for approval or veto.  The Republicans
today control the legislature and governor in 21 states with 216 electoral
votes - not the 28 states with 294 electoral votes mentioned in the Slate
article.  (The states with a Republican legislature and Democratic governor
are KS, KY, LA, MI, MT, NC, PA, and WI, and Alaska has a D-led coalition in
the House).  Thus, the Republican Party could (absent Democratic support)
only repeal popular elections for presidential electors in 2020 in 21 states
with 216 electoral votes.  

 

Of course, cancelling popular elections for presidential electors would not
cancel the November 3, 2020 elections for (the typically numerous) offices
that state constitutions require to be elected on November 3, 2020 (and
legislatures and governors cannot amend their state constitutions without a
popular vote).  

 

The involvement of the state's governor in enacting legislation specifying
the manner of appointing presidential electors was established at the time
of the first presidential election by the two states where the governor had
veto power at the time (Massachusetts and New York). 

 

On November 20, 1788, both chambers of the Massachusetts legislature
approved legislation specifying the manner for appointing the state's
presidential electors for the first election. This legislation was presented
to Governor John Hancock, and Governor Hancock approved the legislation. 

 

The New York Constitution in 1788 required that all bills passed by the
legislature be submitted to a Council of Revision composed of the Governor,
the Chancellor, and the judges of the state supreme court. A two-thirds vote
of both houses of the legislature was necessary to override a veto by the
Council.

New York did not appoint presidential electors in the 1788 election because
of a dispute between the two chambers of the legislature.  In 1792, a bill
was passed by both chambers of the legislature and submitted to the Council
or Revision in time for the 1792 presidential election.  This legislation
called for presidential electors to be elected by the two houses of the
state legislature.  The Council approved this legislation.  That is, the
legislation specifying the manner of appointing presidential electors was
presented to the Council of Revision for approval or veto EVEN WHEN that
legislation specified that only the legislature would be involved in
appointing the electors. 

 

The fact that legislation specifying the manner of electing federal officers
was subject to veto is further illustrated by the legislation in New York
specifying the manner of electing U.S. Senators.  Prior to the 17th
Amendment, U.S. Senators were appointed by the state legislature.  However,
legislation was needed to specify whether the Senators would be elected by a
joint convention of both chambers of the legislature or by a resolution
voted on separately by both chambers (the latter method enhancing the power
of the Federalist-controlled Senate). In 1789, the New York legislature
passed a bill in 1789 specifying for the manner of electing U.S. Senators,
and this bill was presented to the Council of Revision.  The Council vetoed
the bill, and that legislation did not take effect.  That is, the
legislation specifying the manner of appointing U.S. Senators was presented
to the Council of Revision for approval or veto EVEN WHEN the legislation
specified that only the legislature would be involved in appointing the
Senators. 

 

Of course, today, every governor has veto power. 

 

Dr. John R. Koza

Box 1441

Los Altos Hills, California 94023

Phone: 650-941-0336

Email: koza at NationalPopularVote.com <mailto:koza at NationalPopularVote.com>  

URL: www.NationalPopularVote.com <http://www.NationalPopularVote.com>  

 

 

From: Law-election <law-election-bounces at department-lists.uci.edu
<mailto:law-election-bounces at department-lists.uci.edu> > On Behalf Of Rick
Hasen
Sent: Saturday, March 14, 2020 11:32 AM
To: Election Law Listserv <law-election at uci.edu
<mailto:law-election at uci.edu> >
Subject: [EL] ELB News and Commentary 3/14/20

 


 <https://electionlawblog.org/?p=110008> "Trump Can't Cancel the Election.
But States Could Do It for Him."


Posted on  <https://electionlawblog.org/?p=110008> March 14, 2020 11:26 am
by  <https://electionlawblog.org/?author=3> Rick Hasen

 

Mark Joseph Stern
<https://slate.com/news-and-politics/2020/03/trump-cancel-election-day-const
itution-state-electors-coronavirus.html> on the potential for state
legislatures to choose presidential electors directly:

 

As the 2016 election reminded the country, the president is chosen by the
Electoral College, not the popular vote. There are 538 electors, and a
candidate needs 270 of them to win. Currently, every state assigns electors
to the candidate who won the popular vote statewide. (Two states
<https://www.fairvote.org/maine_nebraska> add a twist that's irrelevant
here.) But the Constitution does not require states to assign their electors
on the basis of the statewide vote. It does not even require a statewide
vote. Rather, it explains that each state "shall appoint" its electors "in
such manner as the Legislature thereof may direct." In other words, each
state legislature gets to decide how electors are appointed-and, by
extension, who gets their votes.

Today, every state legislature has delegated this task to the people. But at
first, state legislatures just did it themselves. In the first presidential
election, for instance, the legislatures of Connecticut, Delaware, Georgia,
New Jersey, and South Carolina appointed electors directly. Eventually,
every state moved toward the modern system. But the Supreme Court confirmed
in 1892's  <https://supreme.justia.com/cases/federal/us/146/1/> McPherson v.
Blacker that states were free to revert to the old method, and in 2000's
<https://www.law.cornell.edu/supct/html/00-949.ZPC.html> Bush v. Gore, the
court reiterated this point. The majority declared that the state
legislature "may, if it so chooses, select the electors itself," and retains
authority to "take back the power to appoint electors" even after switching
to a statewide vote.

Put simply, it is perfectly constitutional for a state legislature to scrap
statewide elections for president and appoint electors itself. It would also
be constitutional for a state legislature to disregard the winner of the
statewide vote and assign electors to the loser. And because the
Constitution grants legislatures the authority to pick electors this way,
Congress cannot stop them.

 
<https://www.nytimes.com/2019/06/28/upshot/the-gerrymandering-ruling-and-the
-risk-of-a-monopoly-on-power.html> Due in part to partisan gerrymandering,
Republicans control the legislatures of 28 states. Collectively, these
states have 294 electoral votes. Trump himself could not cancel the entire
presidential election. But he could ask these GOP-dominated legislatures to
cancel their statewide presidential elections and assign their electors to
him. It's doubtful that we will face this situation in November. But imagine
a worst-case scenario: The election is approaching, and the coronavirus
remains rampant in our communities. States are unsure whether they have the
personnel and resources to hold an election. Congress has failed to mandate
no-excuse absentee balloting, and many states have declined to implement it.
Or the postal service is so hard hit that it cannot reliably carry ballots
to and from voters' residences. It's not difficult to envision Trump's
allies in state legislatures assigning their states' electoral votes to the
president, insisting that these dire circumstances justify pulling a
constitutional fire alarm.

 

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