[EL] Loss of legislature's authority to choose electors directly

[Mark Scarberry]

In response to Rick:

Even if the legislature had constitutional authority to reclaim the power to choose electors, state constitution or statutes notwithstanding (per the suggestions at least in McPherson and Palm Beach County), it lost that authority, if electors were chosen on election day, because Congress has authority to require that electors be chosen on that date.

It is  difficult (at best) to argue that any of the relevant states did not choose electors on election day.

Mark

Prof. Mark S. Scarberry
Pepperdine University
Rick J. Caruso School of Law
________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Pildes, Rick <rick.pildes at nyu.edu>
Sent: Friday, November 6, 2020 7:29 AM
To: Election Law Listserv
Subject: [EL] (no subject)

I am going to recirculate this point, in the way I put it for the ELB, because of how important it is.
Important statement about the end of the election from PA’s legislative leaders
Posted on November 6, 2020 7:25 am<https://electionlawblog.org/?p=118230> by Richard Pildes<https://electionlawblog.org/?author=7>

This<https://www.centredaily.com/opinion/article246527648.html> is an extremely responsible, important statement from the majority leaders of the PA Senate and House. It deserves wide circulation because it makes clear that the voters will decide the election. This statement goes a long way to ensuring we will have an orderly end to the process. I have been highly critical of the PA Governor and legislature, but kudos to the legislative leaders for issuing this statement:

“Pennsylvania lawmakers have no role to play in deciding the presidential election“

We have said it many times and we will happily say it again: The Pennsylvania General Assembly does not have and will not have a hand in choosing the state’s presidential electors or in deciding the outcome of the presidential election.

To insinuate otherwise is to inappropriately set fear into the Pennsylvania electorate with an imaginary scenario not provided for anywhere in law — or in fact.

Pennsylvania law plainly says that the state’s electors are chosen only by the popular vote of the commonwealth’s voters.


Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789

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