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

Thu Sep 10 10:29:37 PDT 2020

Smiley deals with a law making function that the Constitution grants -- the
power to set up the way House elections are run -- and does not involve a
circumstance in which the legislature may choose persons directly, which
everyone understood a legislature could do with respect to presidential
electors. The power to choose electors is similar to the pre-17th Amendment
power that legislatures had to choose Senators. (Consider also the power to
ratify constitutional amendments which is given to state legislatures -- or
conventions -- and that is not subject to a governor's veto.) Smiley and
the Arizona case cabin the language of the Constitution. The language of
the Constitution -- the meaning of the term "legislature" -- has not been
cabined in the case of presidential electors. See again McPherson and the
Palm Beach County case -- and also Hawke.

Again, we discussed this at great length in 2000. I don't expect anyone to
go back and read the archives (if they are even available that far back,
given that the system switched over from a listserv software system to a
Google Groups system a couple of years ago). I may go back in my own
records and pull some of it out.

One might argue that choice of electors falls between the power to set up
the way House elections are done and the power to choose Senators
(pre-17th) or to ratify amendments. I am not persuaded that Smiley or the
Arizona case control, and think the far better argument is that they do
not.

All of this is similar to the question whether the concurring justices in
Bush v. Gore got it right. I think they did, as I argued strenuously on
this list, starting in November of 2000.

That's all I have time for today, except for some remaining list
administrative matters.

best,
Mark

[image: Pepperdine wordmark]*Caruso School of Law*

*Mark S. Scarberry*

*Professor of Lawmark.scarberry at pepperdine.edu
<mark.scarberry at pepperdine.edu>*
Personal: mark.scarberry at gmail.com

On Thu, Sep 10, 2020 at 10:13 AM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> 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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