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

[John Koza]

Neither historical facts going back to 1789, nor consistent practice by the
states since 1789, support Mark's "imperial legislature" theory.

 

In the two states (New York and Massachusetts) where the state's governor
had veto power at the time when the U.S. Constitution took effect, the word
"legislature" meant the state's entire lawmaking process -- not just the two
chambers of the state legislature -- for all three sections of the
Constitution empowering the state "legislature" to act concerning federal
elections:

*	the state's choice of the manner of appointing presidential
electors, 
*	the state's choice of manner of appointing U.S. Senators, and 
*	the state's choice of manner of electing U.S. Representatives. 

 

Starting in 1789, when the "legislature" made these choices, the legislation
was not enacted by the two houses of the legislature alone-even in the cases
where the legislation empowered the two houses of the legislature at act
alone (as in the case of picking U.S. Senators and presidential electors).  

 

In New York, the two houses of the legislature passed a bill in 1789
providing for U.S. Senators to be elected by the two houses of the state
legislature-that is, without presenting the bill to the Governor and the
Council of Revision.  The contentious issue concerning U.S. Senators at the
time was whether the Senators would be elected by a joint convention of both
chambers of the legislature or by a concurrent resolution agreed to by both
chambers (the latter increasing the influence of the Federalist-controlled
Senate).  This bill was presented to the Council of Revision composed of the
Governor, the Chancellor, and the judges of the state supreme court.  The
Council vetoed the bill, and the bill did not become effective.  In other
words, even when the legislation called for the legislature alone to pick
U.S. Senators, the legislature did not try to pass the law alone.  

 

The two chambers of the New York legislature did not reach an agreement on
the manner of appointing presidential electors in time for the first
presidential election in 1789.  Consequently, New York did not appoint any
presidential electors in the nation's first presidential election.  Prior to
the next presidential election, on April 12, 1792, a bill was passed by both
chambers of the legislature and submitted to the Council.  This bill called
for presidential electors to be picked by the two houses of the state
legislature alone-without involvement of the Council of Revision.   The
Council approved this legislation, the bill became law, and the two houses
of the New York legislature alone then picked the state's presidential
electors in 1792.  That is, even when the legislation called for the two
houses of the legislature alone to pick presidential electors, the
legislature did not try to pass the law alone.

 

The New York passed legislation on January 27, 1789, providing the manner of
electing U.S. Representatives.  This bill was submitted to the Council of
Revision. The Council approved the bill, and the bill became law.

 

On November 20, 1788, both chambers of the Massachusetts legislature
approved a bill specifying the manner for appointing the state's
presidential electors. This bill was presented to Governor John Hancock-an
official who was manifestly not part of the two chambers of the state
legislature. The Governor approved the bill, and it became law

 

All current state laws specifying the winner-take-all method of choosing
presidential were presented to the state's Governor for approval or
disapproval before becoming law (if enacted in states where the Governor had
veto power at the time of enactment).  That is, the state's entire
law-making process-not just action by the two chambers of state's
legislature-was required for the "legislature" to "direct."  

 

The phrase "as the legislature may direct" also appears in the 17th
Amendment (ratified in 1913) in connection with filling vacancies in the
U.S. Senate.  This wording parallels the "as the legislature may direct"
wording of Article II, section 1 of the U.S. Constitution.  All current
state laws for vacancy filling under the 17th Amendment were presented to
the state's Governor for approval or disapproval before becoming law (if
enacted in states where the Governor had veto power at the time of
enactment).  That is, the state's entire law-making process-not just action
by the two chambers of state's legislature-was required for the
"legislature" to "direct."  

 

The wording "as the Congress may direct" also appears in the 23rd Amendment
(ratified in 1961).  In implementing the 23rd Amendment, the congressional
legislation establishing the winner-take-all rule for the District of
Columbia was presented to the President for his approval or disapproval.
That is, the entire federal law-making process-not just action by the two
chambers of Congress-was required for the "Congress" to "direct." 

 

Finally, the state legislature's apparent authority to act if there is a
"failure to make a choice" flows from an act of Congress (3 USC 2).  It's
not clear that Congress intended to exclude the state's governor from the
process, or that the Congress could have done so even if it had so intended.


 

Dr. John R. Koza, Chair

National Popular Vote

Box 1441

Los Altos Hills, California 94023 USA

Phone: 650-941-0336

Email: john at johnkoza.com <mailto:john at johnkoza.com> 

URL: www.NationalPopularVote.com <http://www.nationalpopularvote.com/> 

 

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf
Of Mark Scarberry
Sent: Thursday, September 10, 2020 10:03 AM
To: Marty Lederman <Martin.Lederman at law.georgetown.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]

 

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
<mailto:Martin.Lederman at law.georgetown.edu> >
Sent: Thursday, September 10, 2020 9:56:24 AM
To: Mark Scarberry <mark.scarberry at pepperdine.edu
<mailto:mark.scarberry at pepperdine.edu> >
Cc: Pildes, Rick <rick.pildes at nyu.edu <mailto:rick.pildes at nyu.edu> >; Rick
Hasen <rhasen at law.uci.edu <mailto:rhasen at law.uci.edu> >; Election Law
Listserv <law-election at uci.edu <mailto: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 <mailto: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
<mailto:law-election-bounces at department-lists.uci.edu> > on behalf of
Pildes, Rick <rick.pildes at nyu.edu <mailto:rick.pildes at nyu.edu> >
Sent: Thursday, September 10, 2020 6:40:23 AM
To: Marty Lederman <Martin.Lederman at law.georgetown.edu
<mailto:Martin.Lederman at law.georgetown.edu> >; Rick Hasen
<rhasen at law.uci.edu <mailto:rhasen at law.uci.edu> >
Cc: Election Law Listserv <law-election at uci.edu
<mailto: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
<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 <mailto:rhasen at law.uci.edu> >
Cc: Election Law Listserv <law-election at uci.edu
<mailto: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
<mailto:rhasen at law.uci.edu> > wrote:


 
<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3
Fp-3D114962&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypx
aOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=lWI82nw-dZEJ
v-mM0rwGlj5QqLWxHL_rwn7gmoATN9g&e=> "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."


Posted on
<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3
Fp-3D114962&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypx
aOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=lWI82nw-dZEJ
v-mM0rwGlj5QqLWxHL_rwn7gmoATN9g&e=> September 9, 2020 7:55 pm by
<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3
Fauthor-3D3&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypx
aOkdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=xvELDkQSL9le
UmszOxD2O3cCGasYOV4WpgMyMFtFG-g&e=> Rick Hasen

 
<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theatlantic.com_po
litics_archive_2020_09_trump-2Dbiden-2Delectoral-2Dcount-2Dact-2D1887_615994
_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAc
lgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=Ktfv3uU-_-IITgZ8QR6Qlq
xKPvY2IgqkzZrASuz1NRw&e=> The Atlantic:

Many Americans know that counting all of the votes in this November's
presidential election
<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.theatlantic.com_po
litics_archive_2020_07_new-2Dyork-2Delection-2Dfailure-2Dmail-2Din-2Dvoting_
614446_&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkd
tbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=tMv6Sqniek14dOiV
CuixKpdYcbvurV2TvbNpzoVp5rM&e=> is going to take extra time. 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
<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=> an April
report of possible election problems. But it's still the law.



Posted in
<https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3
Fcat-3D44&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaO
kdtbkRAclgHRk&m=d_vsH07yzvy7XemChhbIa4gW7ql-YNcHfq9u7lojwMw&s=eYHxFNtJo8id6E
kPy24VsqEI-P835GI8mmEHy3gEg9g&e=> electoral college

 

 




 

-- 

Marty Lederman 

Georgetown University Law Center

600 New Jersey Avenue, NW

Washington, DC 20001

202-662-9937

 

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