[EL] Atlantic "Deadline that Could Hand Trump the Election" piece [ELB News and Commentary 9/10/20]

Thu Sep 10 10:12:58 PDT 2020

As Mark knows, Smiley is to the contrary--as is, of course, Arizona
Redistricting.  Whether or not the current Court would, as in Arizona,
allow a state to cut out the legislature entirely, I don't see any
authority for the view that the legislature's own decision isn't subject to
the state lawmaking process.  Indeed, I read even Roberts's dissent in AZ
to affirm Smiley.

On Thu, Sep 10, 2020 at 1:03 PM Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> Very quickly: The Constitution is a direct grant of authority to state
> legislatures qua legislatures, not a grant of authority to the law-making
> function of a state, which may include a governor via veto power or may be
> given to the people via initiative or referendum, cutting the legislature
> completely out. The Constitution is the law that grants legislatures the
> authority.
>
> Mark S. Scarberry
> Professor of Law
> Pepperdine University
> Rick J. Caruso School of Law
> ------------------------------
> *From:* Marty Lederman <Martin.Lederman at law.georgetown.edu>
> *Sent:* Thursday, September 10, 2020 9:56:24 AM
> *To:* Mark Scarberry <mark.scarberry at pepperdine.edu>
> *Cc:* Pildes, Rick <rick.pildes at nyu.edu>; Rick Hasen <rhasen at law.uci.edu>;
> Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] Atlantic "Deadline that Could Hand Trump the
> Election" piece [ELB News and Commentary 9/10/20]
>
> Thanks, Mark.  But what's the authority for (or substance of) the argument
> that the state legislature can exercise the power to choose electors *without
> enacting a law to that effect*?
>
> On Thu, Sep 10, 2020 at 12:41 PM Mark Scarberry <
> mark.scarberry at pepperdine.edu> wrote:
>
> I disagree with Marty on one point (and haven’t had time to consider other
> points from his post).
>
> The state legislature’s power to determine the manner by which the state
> appoints electors is a power that the legislature cannot give up, including
> by way of statute. That includes the power of the legislature to decide at
> any time prior to or on election day to exercise the power to choose
> electors without enacting a law to that effect. See McPherson v. Blacker
> (which, if you read it quite carefully, will lead you to that
> conclusion) and consider the 2000 Palm Beach County decision. The Arizona
> Redistricting Commission case doesn’t, in my opinion, change that. We
> discussed related issues at great length in 2000 on this list.
>
> Congress can give states the power to choose electors after Election Day,
> and if I remember correctly Congress has, if electors aren’t chosen on that
> date, but Congress cannot, of course, specify how they are chosen, and thus
> the state legislatures retain power in that case to choose electors
> directly.
>
> I don’t have time today to debate this at length. Some of you may know
> that I have been overwhelmed the last few days with matters concerning this
> list and an AALS list. Time to get ready to teach election law.
>
> Best,
> Mark
>
> Mark S. Scarberry
> Professor of Law
> 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:* Thursday, September 10, 2020 6:40:23 AM
> *To:* Marty Lederman <Martin.Lederman at law.georgetown.edu>; Rick Hasen <
> rhasen at law.uci.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] Atlantic "Deadline that Could Hand Trump the
> Election" piece [ELB News and Commentary 9/10/20]
>
>
> All these nightmare scenario articles fail to mention the most obvious way
> to forestall these situations from arising in the first place:  encourage
> people to vote in person.  The higher the percentage of in-person voting,
> particularly in key states, the lower the probability of these scenarios
> arising.
>
>
>
> Unless I read too quickly, it’s also odd that this article does not even
> mention Sen. Rubio’s bill to change these ECA dates.
>
>
>
> Best,
>
> Rick
>
>
>
> Richard H. Pildes
>
> Sudler Family Professor of Constitutional Law
>
> NYU School of Law
>
> 40 Washington Square So.
>
> NYC, NY 10014
>
> 212 998-6377
>
>
>
> *From:* Law-election [mailto:law-election-bounces at department-lists.uci.edu]
> *On Behalf Of *Marty Lederman
> *Sent:* Thursday, September 10, 2020 9:26 AM
> *To:* Rick Hasen <rhasen at law.uci.edu>
> *Cc:* Election Law Listserv <law-election at uci.edu>
> *Subject:* Re: [EL] Atlantic "Deadline that Could Hand Trump the
> Election" piece [ELB News and Commentary 9/10/20]
>
>
>
> The Atlantic piece isn't accurate in some respects.
>
>
>
> For one, I believe Congress prescribed the 12/14 date in 1934, not in the
> 1887 ECA.
>
>
>
> For another, the article assumes the PA legislature could itself choose
> electors on that date, even though there's no PA law providing for that.
> (The state legislature doesn't have a "constitutional right to pick its own
> electors"--it has a constitutional power to enact laws prescribing the
> "manner" in which PA will appoint electors.  And it has not enacted a law
> assigning that authority to the legislature itself.)
>
>
>
> Perhaps most importantly, the headline is misleading.  If the Senate and
> House on January 6 disagreed about who had won the election, Trump wouldn't
> be "handed" the victory.  Indeed, he'd be required to leave office on
> January 20 (unless the SCOTUS were to rule that the Senate's decision
> supersedes the House's--which it *shouldn't *do, but who knows?).
>
>
>
> On Wed, Sep 9, 2020 at 11:20 PM Rick Hasen <rhasen at law.uci.edu> wrote:
>
> “The Deadline That Could Hand Trump the Election; A 133-year-old law
> creates perverse incentives for the Trump administration—and could make a
> chaotic postelection period even more tumultuous.”
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D114962&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=lWI82nw-dZEJv-mM0rwGlj5QqLWxHL_rwn7gmoATN9g&e=>
>
> Posted on September 9, 2020 7:55 pm
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D114962&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=lWI82nw-dZEJv-mM0rwGlj5QqLWxHL_rwn7gmoATN9g&e=>
>  by *Rick Hasen*
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fauthor-3D3&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=xvELDkQSL9leUmszOxD2O3cCGasYOV4WpgMyMFtFG-g&e=>
>
> The Atlantic:
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theatlantic.com_politics_archive_2020_09_trump-2Dbiden-2Delectoral-2Dcount-2Dact-2D1887_615994_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=Ktfv3uU-_-IITgZ8QR6QlqxKPvY2IgqkzZrASuz1NRw&e=>
>
> *Many Americans know that counting all of the votes in this November’s
> presidential election is going to take extra time
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theatlantic.com_politics_archive_2020_07_new-2Dyork-2Delection-2Dfailure-2Dmail-2Din-2Dvoting_614446_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=tMv6Sqniek14dOiVCuixKpdYcbvurV2TvbNpzoVp5rM&e=>.
> Few people realize there’s a specific deadline by which states must finish.*
>
> *The 1887 Electoral Count Act seems like an obscure piece of political
> trivia. But ahead of what could be one of the most contested presidential
> elections in modern history, some experts worry that this 133-year-old
> relic of the U.S. Code could endanger the whole republic. The law itself is
> a relic of the last time the partisan divide got so intense that it nearly
> ripped apart the country. But no one ever clarified the bits of it that are
> ambiguous, and no one ever came back to revise or update it. The law is a
> “morass of ambiguity, which is the exact opposite of what is required in
> this situation,” a group of legal scholars convened by UC Irvine wrote
> in an April report of possible election problems
> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.law.uci.edu_faculty_full-2Dtime_hasen_2020ElectionReport.pdf&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=i4CDaW9snCkdJcQK-Ymkb0jmFOs3LeQLEsChwBejoJo&e=>.
> But it’s still the law.*
>
> [image: Share]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.addtoany.com_share-23url-3Dhttps-253A-252F-252Felectionlawblog.org-252F-253Fp-253D114962-26title-3D-25E2-2580-259CThe-2520Deadline-2520That-2520Could-2520Hand-2520Trump-2520the-2520Election-253B-2520A-2520133-2Dyear-2Dold-2520law-2520creates-2520perverse-2520incentives-2520for-2520the-2520Trump-2520administration-25E2-2580-2594and-2520could-2520make-2520a-2520chaotic-2520postelection-2520period-2520even-2520more-2520tumultuous.-25E2-2580-259D&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=LlGVTWAnJJKH7bV0lmlVwfKcYFHMXkLs9bLF9rMcw-c&e=>
>
> Posted in electoral college
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fcat-3D44&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=eYHxFNtJo8id6EkPy24VsqEI-P835GI8mmEHy3gEg9g&e=>
>
>
>
>
>
>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
>

-- 
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937
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