[EL] New subject line: Direct choice of electors by legislators

[Mark Scarberry]

I agree with Rick. The Constitution allows Congress to set the date on
which electors are appointed. Congress has done so by setting Election Day
under 3 USC section 1. Congress also allows a state to appoint electors
after that date if the state held an election that failed to result in a
choice of electors. 3 USC section 2. If the election does result in
appointment of electors on Election Day, the state legislature no longer
has power to choose them directly.

That's even though, in my view, the state legislature could, up to and even
on Election Day, exercise its constitutionally granted power to choose
electors directly.

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 24, 2020 at 3:40 PM Pildes, Rick <rick.pildes at nyu.edu> wrote:

> Having not thought about this issue until now, I do not plan to
> characterize state legislatures as “taking back their power to appoint
> electors” were they to appoint a second slate of electors.  They have,
> instead, already fully relinquished their power through enacted laws that
> create the popular election.
>
>
>
> If they tried to appoint another slate of electors, the only mechanism for
> doing so after the election would be to declare that the state’s election
> had “failed,” under federal law, and that the state had, in essence, not
> held an election.  In that circumstance, the state legislatures have a
> default power to fill the vacuum by appointing electors.  They aren’t
> “taking back their power” at that point – they have a back-up power if, and
> only if, the election has failed.
>
>
>
> The scenarios being discussed about a second slate of electors arise after
> the election has taken place.  The legislature can’t “take back its power”
> at that point.  Only if the election has “failed” can it fill the gap with
> its failsafe power to ensure a state does have electors.
>
>
>
>  ...
>


> How Realistic Is It That State Legislatures Would Take Back Their Power to
> Choose Electors Directly This Fall?
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D115664&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=nuf6dgqBlsSJ9yO8iwcQyykv3x0vQZh0bXuWGHlr3Q4&s=5jaBY_I4NGwuBVFU9zNa38id8kLeVsGDg8l_6y-H-RU&e=>
>
> Posted on September 24, 2020 8:07 am
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fp-3D115664&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=nuf6dgqBlsSJ9yO8iwcQyykv3x0vQZh0bXuWGHlr3Q4&s=5jaBY_I4NGwuBVFU9zNa38id8kLeVsGDg8l_6y-H-RU&e=>
>  by *Rick Hasen*
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fauthor-3D3&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=nuf6dgqBlsSJ9yO8iwcQyykv3x0vQZh0bXuWGHlr3Q4&s=LmSDFf0hJ33R9xzoyGv9YCvL8Dd_MhLeKipDqjQ0yZo&e=>
>
> I wrote a thread on Twitter about this, starting here:
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__twitter.com_rickhasen_status_1309143625268330497&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=nuf6dgqBlsSJ9yO8iwcQyykv3x0vQZh0bXuWGHlr3Q4&s=U6NvrevV_XtJiSKF4SKfBdv_4DNMYRRjXgT6PSAu95Y&e=>
>
> [image: Share]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.addtoany.com_share-23url-3Dhttps-253A-252F-252Felectionlawblog.org-252F-253Fp-253D115664-26title-3DHow-2520Realistic-2520Is-2520It-2520That-2520State-2520Legislatures-2520Would-2520Take-2520Back-2520Their-2520Power-2520to-2520Choose-2520Electors-2520Directly-2520This-2520Fall-253F&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=nuf6dgqBlsSJ9yO8iwcQyykv3x0vQZh0bXuWGHlr3Q4&s=7m2fVyvDDDFMvuUeaBXMuGidOU2yXQ7JSfy5kg6o86c&e=>
>
> Posted in Uncategorized
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__electionlawblog.org_-3Fcat-3D1&d=DwMGaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=nuf6dgqBlsSJ9yO8iwcQyykv3x0vQZh0bXuWGHlr3Q4&s=E3u0_BXpMT4mi9jxwxRqpGUvIBXP3KiCezZPYqFQmfI&e=>
>
>
>
>
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