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

[Dan Meek]

But 3 U.S.C.  2 states:

    Whenever any State has held an election for the purpose of choosing
    electors, and has failed to make a choice on the day prescribed by
    law, the electors may be appointed on a subsequent day in such a
    manner as the legislature of such State may direct.

    (June 25, 1948, ch. 644, 62 Stat. 672
    <https://uscode.house.gov/statviewer.htm?volume=62&page=672>.)

The Trump argument seems to be that, unless the vote count is halted 
before midnight on November 3, then the state " has failed to make a 
choice _on the day prescribed by law_."  Thus, "the electors may be 
appointed on a subsequent day in such a manner as the legislature of 
such State may direct."  The manner could be that the legislature itself 
appoints the electors.

Dan Meek

	503-293-9021 	dan at meek.net <mailto:dan at meek.net>	855-280-0488 fax


On 9/24/2020 5:49 PM, Mark Scarberry 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
> 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 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.
>
>     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=>
>
>     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=>
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