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

[Mark Scarberry]

Justin certainly makes some good points, and quite obviously my view is
controversial.

But quickly: The reasoning in McPherson supports my contention, as I argued
(fairly successfully I think) on this list back in 2000.

Unfortunately for the NPVIC, this makes the blackout period unenforceable,
which undermines the NPVIC scheme, but does not by itself render the NPVIC
unconstitutional, because of its severability clause.

McPherson also rather directly renders the NPVIC unconstitutional, because
a key issue in the case was whether the vote of the people by district
resulted in the choice of the electors being made by the voice of the
state. The Court held that it did, because the voice of the state, as
expressed by voters across the state, resulted in choice of the electors as
a group, even though none of the electors were chosen by the  vote of all
of the voters of the state. The national popular vote is not in any sense
the voice of the state. Sometime during this century I will finish an
article that sets out that argument fully. (There is a detailed poli sci
journal article that gives the history of the Miner act. Citation available
on request.)

Of course a state legislature may choose to enact an ordinary statute
setting out how electors will be chosen. That does not mean that the state
legislature is prohibited from taking back the power despite the statute
(due for example to the governor's stated plan to veto any new statute) and
exercising it independently. The Florida legislature almost tried to do
that in 2000. One of the problems is that Congress had set election day as
the date on which states had to choose electors, and that date had of
course passed. The Florida legislature would have had to argue that no
electors were chosen on election day, so that they were entitled to choose
electors after election day. But that ran counter to the GOP's main
argument, that Bush won the election, so that his electors were chosen on
election day.

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 4:40 PM John Koza <john at johnkoza.com> wrote:

> *McPherson v. Blacker* was about changing Michigan’s pre-1892
> winner-take-all statute (which had been passed by the legislature and
> presented to the governor for approval or disapproval) with an different
> statute (which had been passed by the legislature and presented to the
> governor for approval or disapproval).
>
>
>
> Nothing in *McPherson v. Blacker* had anything to do with two houses of a
> state legislature trying to unilaterally exercise an Article II power
> without presenting their proposed action to the governor for approval or
> disapproval.
>
>
>
> After the 1892 presidential election conducted in Michigan under the new
> 1892 Miner law (which specified that presidential electors be chosen by
> districts), the 1892 Miner Law was replaced by a new state-level
> winner-take-all statute (which was passed by the legislature and presented
> to the governor for approval or disapproval).
>
>
>
>
>
> Dr. John R. Koza, Chair
>
> National Popular Vote
>
> Box 1441
>
> Los Altos Hills, California 94023 USA
>
> Email: john at johnkoza.com
>
> URL: www.johnkoza.com
>
> URL: www.NationalPopularVote.com <http://www.nationalpopularvote.com/>
>
>
>
> *From:* Mark Scarberry <mark.scarberry at pepperdine.edu>
> *Sent:* Thursday, September 10, 2020 1:53 PM
> *To:* John Koza <john at johnkoza.com>
> *Cc:* Marty Lederman <Martin.Lederman at law.georgetown.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]
>
>
>
> 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
>
>
>
> [image: Pepperdine wordmark]
>
> *Caruso School of Law*
>
>
> *Mark S. Scarberry*
>
>
> *Professor of Law**mark.scarberry at pepperdine.edu
> <mark.scarberry at pepperdine.edu>*
>
> Personal: mark.scarberry at gmail.com
>
>
>
>
>
>
>
>
>
> On Thu, Sep 10, 2020 at 1:19 PM John Koza <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
>
> 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>
> *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
>
>
>
>
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