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

Thu Sep 10 14:20:57 PDT 2020

FWIW, as Mark knows, I think there’s not universal agreement that the passage is as clear as presented.  He’s absolutely right that the citation below is from a Senate Committee report, and he’s absolutely right that the Court cited it, but there’s a lot more ambiguity in the rest of the opinion about whether the court adopted the particular conclusion of complete and irrevocable legislative authority as its own.  For a start, that wasn’t the question in the case.  MacPherson wasn’t about an asserted plenary constitutional power of the legislature to act contrary to state law, but rather about the power of the legislature, by statute, to provide for the appointment of electors by districts (as opposed to by a general statewide ticket).  And there are plentiful quotes from outside of that passage, with the Court speaking in its own voice rather than citing others, discussing the power of the states to determine the mode of appointment of electors (and not specifically the state legislatures acting in a way otherwise inconsistent with state law).

I don’t mean to re-engage the debate here about which reading as proper.  Just want to flag that the snippet Mark has cited accurately represents the conclusion of a Senate Committee, but there’s a lot more debate about whether it accurately represents the binding assertion of a majority of the Supreme Court.  (And I think there’s even more reason to doubt that the Supreme Court’s 2000 Palm Beach County decision affirmatively decided in favor of plenary legislative authority, rather than simply raising the question, never answered by a majority in that litigation.)

Justin

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Mark Scarberry
Sent: Thursday, September 10, 2020 1:53 PM
To: John Koza <john at johnkoza.com>
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]

Quickly, McPherson v. Blacker, quoting approvingly an 1874 Senate Committee Report:

"The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of Congress, which was the case formerly in many states, and it is not doubt competent for the legislature to authorize the governor, or the

Page 146 U. S. 35

supreme court of the state, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the states by the Constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated."

 More later, perhaps, but not today.

Best,
Mark

[Pepperdine wordmark]
Caruso School of Law

Mark S. Scarberry
Professor of Law
mark.scarberry at pepperdine.edu<mailto:mark.scarberry at pepperdine.edu>
Personal: mark.scarberry at gmail.com<mailto:mark.scarberry at gmail.com>

On Thu, Sep 10, 2020 at 1:19 PM John Koza <john at johnkoza.com<mailto:john at johnkoza.com>> wrote:
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<mailto: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<mailto:Martin.Lederman at law.georgetown.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]

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:

“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.

[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

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