[EL] Atlantic "Deadline that Could Hand Trump the Election" piece [ELB News and Commentary 9/10/20]
Dan Meek
dan at meek.net
Thu Sep 10 16:41:28 PDT 2020
Article II, Section 1, states:
Each State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress: but
no Senator or Representative, or Person holding an Office of Trust or
Profit under the United States, shall be appointed an Elector.
The United States Supreme Court's 5-4 opinion in _Arizona State
Legislature v. Arizona Independent Redistricting Commission_ (2015)
concluded that, when the U.S. Constitution refers to the state
legislatures, it sometimes means the sitting legislatures acting alone
and sometimes means the state's legislative process, including signing
or vetoing by Governors, voter initiatives and referenda.
In brief, the Court said that the Constitution's use of "legislature"
refers to the state's entire legislative process, if the function
assigned is a "legislative" function requiring drafting, deliberation,
policy-making and the like. But it refers to the sitting legislature
only, if the function assigned by the U.S. Constitution is not
"legislative" but is "ratifying" or "electoral" or "consenting." This
would support the conclusion that it is the sitting state legislatures,
acting alone, that have authority to appoint Presidential electors.
And the Elections Clause, we explained, respected the State's choice to
include the Governor in that process, although the Governor could play
no part when the Constitution assigned to “the Legislature” a ratifying,
electoral, or consenting function.
_Arizona State Legislature v. Arizona Indep. Redistricting Comm'n_, 576
US 787, 807, 135 S Ct 2652, 2667, 192 L Ed 2d 704 (2015).
In sum, our precedent teaches that redistricting is a legislative
function, to be performed in accordance with the State's prescriptions
for lawmaking, which may include the referendum and the Governor's veto.
The exercise of the initiative, we acknowledge, was not at issue in our
prior decisions. But as developed below, we see no constitutional
barrier to a State's empowerment of its people by embracing that form of
lawmaking.
Id., 576 US 787, 808–09, 135 S Ct 2652, 2668.
Dr. Koza's history appears quite compelling, however, and could change
the Court's collective mind, if presented there. But the 4 dissenting
justices in the Arizona case interpreted the Constitution as assigning
*more* functions to the sitting state legislatures acting alone, not
fewer. When it comes to "electoral" functions, then, it appears that
the current justices are unanimous in concluding that the Constitution
assigns that to the sitting legislatures, acting alone. The 4-justice
dissent stated;
The Constitution includes seventeen provisions referring to a
State's “Legislature.” See Appendix, infra. Every one of those
references is consistent with the understanding of a legislature as
a representative body.
Id., 576 US at 829.
Dan Meek
503-293-9021 dan at meek.net <mailto:dan at meek.net> 855-280-0488 fax
On 9/10/2020 2:20 PM, Levitt, Justin wrote:
>
> 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 17^th 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
>
>
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
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