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

Thu Sep 10 10:50:32 PDT 2020

A very last comment on this for today. That "so-called power" was
understood to have been granted by the Constitution, was exercised by some
state legislatures for quite a few years, and is still available for a
state legislature to exercise.

[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 10:37 AM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> 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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