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

Thu Sep 10 10:36:43 PDT 2020

I don't want to belabor Mark, but Article II, Section 1, like Art. I, Sec.
4, also describes a lawmaking function for the state legislature--the power
to "direct" the "manner" in which "Each State shall appoint" electors.
Whereas, by contrast, Art. I section 3 provided that Senators shall be
"chosen by the Legislature" of the State.  There's no similar language when
it comes to a so-called power of legislatures to choose presidential
electors.

On Thu, Sep 10, 2020 at 1:30 PM Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> 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
>>
>>

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