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

Sun Mar 15 08:34:09 PDT 2020

I believe Prof. Scarberry may have misread my comments about the Stern article in Slate.  The Stern article was talking about a legislation enacted acting AFTER Election Day -- not BEFORE.   The Stern article said, “It would also be constitutional for a state legislature to disregard the winner of the statewide vote and assign electors to the loser.”   The “winner of the statewide vote” and the “loser” are only known after Election Day, so Stern was clearly talking about something happening after Election Day.   What I was saying (and I doubt Prof. Scarberry would disagree with me) is that AFTER Election Day, the legislature cannot appoint a different set of electors than those already chosen by the voters on Election Day.   I believe we both agree that, legislation could be passed BEFORE Election Day 2020 to move the power of appointment of presidential electors from the voters to the state legislature.  

We apparently do disagree on WHO has the power to do the moving in 2020.  Prof. Scarberry says, “legislators whose party controls both houses of a state can, up to election day, decide to appoint electors themselves” – that is, the legislation making the change need not be presented to the governor for his approval or veto.   I believe this is incorrect because

*	In all 50 states, all existing legislation calling for popular election of presidential electors was enacted in the form of a statute, which was presented to the governor for his approval or veto.  Prof. Scarberry's claim that a legislature can repeal an existing state statute by a mere concurrent resolution of the legislature is certainly a novel one. 
*	In the only two states where governors had the veto power in 1788, the legislation specifying how the state would appoint its presidential electors was presented to the governor for his approval or veto -- including, tellingly, in New York, where the legislation lodged the appointment in the legislature alone.  This is a strong indication of how the Founding generation interpreted the meaning of “legislature” in Article II, section 1. 
*	An additional indication (not mentioned in my posting yesterday) is that the 17th Amendment uses parallel language to Article II, Section 1 in empowering the “legislature” to specify how the state executive may fill senate vacancies “as the legislature may direct.” All existing state vacancy-filling legislation was enacted in the form of a statute, which was presented to the governor for his approval or veto.
*	Yet another indication is the 23rd Amendment uses parallel language to Article II, Section 1 in empowering Congress to specify the manner of appointing the District of Columbia’s presidential electors “in such manner as the Congress may direct.” This legislation was in the form of a statute, which was presented to the President for his approval or veto.    

Thus, there is no historical precedent for Prof. Scarberry's claim that “legislators whose party controls both houses of a state can, up to election day, decide to appoint electors themselves”

Dr. John R. Koza

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

Email: john at johnkoza.com <mailto:john at johnkoza.com> 

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

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

From: Mark Scarberry <mark.scarberry at pepperdine.edu> 
Sent: Saturday, March 14, 2020 11:06 PM
To: John Koza <john at johnkoza.com>
Cc: Rick Hasen <rhasen at law.uci.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] 2 errors in "Trump Can't Cancel the Election. But States Could Do It for Him" / ELB News and Commentary 3/14/20

I would suggest that Dr. Koza is mistaken in thinking that a state statute can prevent a state legislature from deciding, prior to election day, that it will choose the electors. It is fairly clear from the Palm Beach County case that not even a state constitution can deprive the legislature of its plenary power to determine the manner by which electors are appointed by the state; and if the state constitution cannot do so, then neither may an ordinary statute. This is a subject that was debated intensely during the 2000 election dispute (including by way of a long series of exchanges on the conlawprof list). Language in McPherson v. Blacker has been taken out of context (quite innocently) and given a meaning opposite to that intended by the Court. Yes, the state constitution creates the legislature, but the state constitution cannot constrain the legislature in exercising the power directly granted to it by the US Constitution -- a right that the state legislature cannot give up. As the Court said in Bush v. Gore (quoting Blacker, which was quoting a Senate report), "[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated." Certainly there is language in Blacker and in Palm Beach County and  in Bush v.  Gore that we could argue about (including a reference in Bush v. Gore to "the State" taking power to appoint electors away from the voters). But in the end I am persuaded that the legislature can act alone, contrary to Dr. Koza's argument, if it acts before election day. There is no need for the legislature to enact a statute that would be subject to a governor's veto in order for the legislature to do so. This plenary power of state legislatures, which they cannot abdicate, is one reason why the National Popular Vote Compact cannot bind states to give their electors to the national popular vote plurality winner, as it purports to do, with no opportunity for them to withdraw shortly before election day. The "black-out" period is unconstitutional. Given that the NPVC has a severability clause, that might not be fatal. There are other reasons why the compact is unconstitutional -- including some that others haven't addressed -- but that's a story for another day, and not one that I have time to go into now. I will say that Dr. Koza has accomplished something no one would have thought possible, by putting forward the compact and generating tremendous support for it. He deserves great credit, though ultimately his project must fail.

All of this means that legislators whose party controls both houses of a state legislature can, up to election day, decide to appoint electors themselves. But that will not happen.

Mark

  <https://www.pepperdine.edu/_resources/images/email/pepperdine.png> 

Caruso School of Law

Mark S. Scarberry

Professor of Law
mark.scarberry at pepperdine.edu <mailto:mark.scarberry at pepperdine.edu> 

On Sat, Mar 14, 2020 at 6:17 PM John Koza <john at johnkoza.com <mailto:john at johnkoza.com> > wrote:

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-constitution-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-constitution-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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