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

Thu Sep 10 10:55:37 PDT 2020

Well, it's indisputable that many expected legislatures to give themselves
the power to select electors--and many legislatures did so.  But my
understanding is that they did so pursuant to statutes that they enacted.
The question is whether such statutes are subject to gubernatorial
veto--and I still haven't heard a reason why they aren't.

On Thu, Sep 10, 2020 at 1:51 PM Mark Scarberry <
mark.scarberry at pepperdine.edu> wrote:

> 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
>>
>>

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