[EL] New subject line: Direct choice of electors by legislators
Dan Meek
dan at meek.net
Fri Sep 25 02:58:34 PDT 2020
Jon,
Yes, the phrase applies whenever the state "has held an election for the
purpose of choosing electors." The Trump argument seems to be that,
yes, the state has "held an election" on November 3 but has "failed to
make a choice on the day prescribed by law," because the full results of
the election are not available by midnight on November 3. I see nothing
in the U.S. Constitution that says an election is not "held" until all
the votes are counted, regardless of how long that takes. 3 U.S.C. 2
appears to describe a situation where an election is "held" but has
"failed to make a choice." That seems to imply that an election is
"held" before its results are determined.
I don't think that state legislatures should alter the results of true
full ballot counts, which may take days or weeks. I am indicating what
appears to be the Trump approach and asking how it can be countered.
It seems to me that due process in this situation (should it occur) will
be defined and determined by the United States Supreme Court in November
or December 2020, with (probably) 3 justices having been appointed by
Trump. Also, I am not aware that provisions in the U.S. Constitution
are required to be reasonable, and that determination (if required)
would also be up to the United States Supreme Court.
Dan Meek
503-293-9021 dan at meek.net <mailto:dan at meek.net> 855-280-0488 fax
On 9/24/2020 9:12 PM, Jon Sherman wrote:
> Mark, what's the argument that that wouldn't violate due process? You
> think on Election Day you can cancel the voting rights of US citizens
> and appoint a slate of electors and it wouldn't constitute a due
> process violation? Seriously? For years, the courts have essentially
> said that anything less than Florida 2000 or Ohio 2004 is just
> "garden-variety election irregularities" and not a fundamental
> fairness / due process violation. Barring something catastrophic on
> the order of FL 2000 or OH 2004, there are always "garden-variety
> election irregularities" - a couple polling places didn't open, a
> couple machines went down, some lines were longer than usual. Voters
> have to put with this crap in every election and cannot usually or
> easily get relief on the day of. Is the argument now that a political
> party or President can point to these "garden-variety election
> irregularities" that have been insufficient to sustain a due process
> violation in years past and use that to supplant an entire state
> electorate's vote WITHOUT causing a due process violation? Even while
> that political party has systematically blocked legislation that would
> permit absentee ballots to be opened and processed earlier than
> Election Day?
>
> Dan, that phrase is inseparable from the first clause "Whenever any
> State has held *_an election_* for the purpose of choosing electors" -
> all of the days that the election is held, the ballots are counted, up
> to and including the certification of results. You think the fate of a
> whole state's worth of votes should/would turn on whether 3 USC 2 was
> updated to say "days"?
>
> On Thu, Sep 24, 2020 at 10:36 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=>
>>
>> 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 inUncategorized
>> <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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> --
> Jon Sherman
> Senior Counsel
> Fair Elections Center
> 1825 K Street NW, Suite 450
> Washington, D.C. 20006
> Phone: (202) 248-5346
> jsherman at fairelectionscenter.org
> <mailto:jsherman at fairelectionscenter.org>
> www.fairelectionscenter.org <http://www.fairelectionscenter.org>
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