[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
john at johnkoza.com
Sun Mar 15 10:43:33 PDT 2020
If Mark Stern and Prof. Scarberry are correct, we could find the two houses
of a state legislature meeting in the state Capitol on Election Day 2020 to
choose the state's presidential electors - the same day when the voters are
voting for presidential electors under the state's un-repealed existing
statute directing that presidential electors be chosen by the people.
Contrary to what Prof. Scarberry says, the 50 existing state laws specifying
that presidential electors be chosen by the people don't "take away" the
power of the two houses of a legislature to act alone (without presenting a
bill to the governor for his approval or veto), because the two houses never
had the power to act alone in the first place.
If the word "legislature" in Article II means the two houses acting alone
(as Mark Stern claimed in his Slate article, and with which Prof. Scarberry
agrees), the word "legislature" would also have that meaning in Article I,
section 4 saying, "The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the
Legislature thereof." That is, a state legislature acting alone (without
submitting their action to the governor for his approval or veto) can pass
legislation relating to congressional elections, including redistricting.
The U.S. Supreme Court addressed the meaning of "legislature" in Article I
in Smiley v. Holm (285 U.S. 355, 1932) in deciding whether the Minnesota
Governor could veto a law passed by the legislature redrawing the state's
congressional districts after the 1930 census. That is, the question in
Smiley was whether the word "legislature" meant the state's two legislative
chambers alone, or the state's normal law-making process which, in Minnesota
in 1932, included presenting bills to the Governor for his approval or veto.
The Supreme Court found that the term "legislature" in Article I, section 4,
clause 1 referred to "making laws" and therefore included the Governor.
The parallelism between the use of the word "legislature" in Article I,
section 4, clause 1 and the word "legislature" in Article II has been noted
repeatedly, including by the Supreme Court in U.S. Term Limits v. Thornton
(514 U.S. 779 at 805, 1995).
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.NationalPopularVote.com <http://www.nationalpopularvote.com/>
From: Mark Scarberry <mark.scarberry at pepperdine.edu>
Sent: Sunday, March 15, 2020 9:05 AM
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
A very quick response:
I agree that a state legislature may not simply choose electors after
Election Day; once they've been chosen, they've been chosen. (It's a
different matter if for some reason electors weren't actually chosen on
Election Day, a matter that we could discuss in the context of the
pandemic.)
I am not arguing that a state legislature may repeal a statute without a
governor playing a role. The statute would not need to be repealed. A
statute simply cannot take away from a state legislature a power granted
directly to it by the U.S. Constitution, a power that can "neither be taken
away nor abdicated." A legislature and governor, by enacting and approving
ordinary legislation, cannot prevent the legislature from later exercising
that power.
The manner by which states appoint electors has been embodied in ordinary
legislation. That legislatures have chosen to do so doesn't mean that their
power to determine in a different way how electors will be appointed is
circumscribed.
Mark S. Scarberry
Professor of Law
Pepperdine University
Rick J. Caruso School of Law
_____
From: John Koza <john at johnkoza.com <mailto:john at johnkoza.com> >
Sent: Sunday, March 15, 2020 8:34 AM
To: 'Mark Scarberry'
Cc: 'Rick Hasen'; 'Election Law Listserv'
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 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
<mailto:mark.scarberry at pepperdine.edu> >
Sent: Saturday, March 14, 2020 11:06 PM
To: John Koza <john at johnkoza.com <mailto:john at johnkoza.com> >
Cc: Rick Hasen <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu> >; Election
Law Listserv <law-election at uci.edu <mailto: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-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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