[EL] Direct choice of electors by legislators *in Pennsylvania given the PA state constitution*
Kirsten Nussbaumer
kirsten_n at me.com
Thu Sep 24 19:21:14 PDT 2020
Pennsylvania seems to be everyone’s top-of-mind state for the post hoc kill-the-popular-vote scenario (e.g., in the Barton Gellman Atlantic essay) and we are told that PA and national Republicans have indeed been strategizing in concert about making this move if the Biden electors lead.
The PA State Constitution specifically addresses contested elections for presidential electors. Article VI, section 13, contested elections, provides:
The trial and determination of contested elections of electors of President and Vice-President, … shall be by the courts of law, or by one or more of the law judges thereof. The General Assembly shall, by general law, designate the courts and judges by whom the several classes of election contests shall be tried and regulate the manner of trial and all matters incident thereto; but no such law assigning jurisdiction, or regulating its exercise, shall apply to any contest arising out of an election held before its passage.
There is a preference here for judicial dispute resolution, as well as a repudiation of post hoc jurisdiction rigging.
In deciding the scope of section 13, I imagine some interpreters will immediately go to their grand (federal constitutional) theory of the proper relationship between state constitutions and state legislatures (i.e., according most or all power to the latter), and then use the federal theory as grounds to narrowly construe the state constitutional section 13 and rule out its relevance to the state-leg-as-appointing-power scenario. But I’m curious how people would otherwise most naturally read section 13 in this context. Or if anyone knows of a PA source that encourages a narrow gloss.
Does section 13 presuppose popular election, or is it a provision that only applies if a popular election has been chosen? Does the text give any reason to think the judicial role contemplated is only nuts-and-bolts (e.g., the micro question whether to toss a particular ballot without a secrecy envelope but not the macro question whether this vote-judging even matters)?
Of course, I have views about the federal question of the state constitution/state legislature relationship. (And I happen to know PA has some unique early history on the constitutional theory of popular presidential election.) But I only started thinking about section 13’s in this context of the state-leg-displacement scenario a few minutes ago. So, I don’t know what I don’t know. (If such a discussion is already on the list-serve, I haven’t caught up on a lot of the email, but am working on it, teeth-grinding...)
thanks,
Kirsten
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=>
<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=>On Sep 24, 2020, at 8:49 PM, Mark Scarberry <mark.scarberry at pepperdine.edu> wrote:
>
> 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
>
> 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 24, 2020 at 3:40 PM Pildes, Rick <rick.pildes at nyu.edu <mailto: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.
>
>
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> 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.
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> 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.
>
>
>
> ...
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>
> 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=>
> <image001.png> <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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