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

Thu Sep 24 22:36:42 PDT 2020

My lyrical mistake, with apologies to Kenny Rogers:

"There'll be time enough for counting, when the voting's done."

Prof. Mark S. Scarberry
Pepperdine University
Rick J. Caruso School of Law
________________________________
From: Mark Scarberry <mark.scarberry at pepperdine.edu>
Sent: Thursday, September 24, 2020 10:09:14 PM
To: law-election at department-lists.uci.edu <law-election at department-lists.uci.edu>
Subject: Re: [EL] New subject line: Direct choice of electors by legislators

The sensible way to look at this is to say that if all the votes are cast (including by being mailed) on or before Election Day, then the appointment of electors is made on that day, even if we won't know who was appointed until all the votes are counted. (I'm sure others have pointed that out many times before.) This is an argument for requiring votes to be mailed, at least, on or before Election Day, but not requiring them to be received by that day. I don't think any state allows counting of mail-in ballots postmarked after that day, though if there is no postmark, then some other method of deciding whether the ballot likely was mailed on or before Election Day will need to be used. (If I understand UOCAVA correctly, the overseas ballot must carry a postmark no later than Election Day or be faxed no later than 8pm on Election Day. Others will know more.)

This is not like Schrodinger's cat -- which is neither alive nor dead until we open the box and look. A winner will have been chosen on Election Day, absent the kind of problem that would cause the election to fail. We just won't know who won on Election Day until we finish counting the ballots.

Is it ever the case that the ballots cast in person in a state all are counted by midnight? It would be unreasonable -- more than unreasonable -- to require the counting to be finished by then, whether ballots are cast in person or by mail. "There'll be time enough for counting, till the counting's done."

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 8:37 PM Dan Meek <dan at meek.net<mailto:dan at meek.net>> wrote:
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=>

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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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