Friday, September 25, 2020

State Legislatures Cannot Act Alone In Assigning Electors

by Grace Brosofsky, Michael C. Dorf, and Laurence H. Tribe

The Constitution’s Presidential Electors Clause of Article II, Section I empowers each state, through its legislature, to direct the “Manner” by which its representatives in the Electoral College are appointed. Since relatively early in the nineteenth century, the near-universal practice of states has been to enact legislation designating popular election as the appropriate manner. With the exception of Maine and Nebraska, which apportion their Electors to the winners of the Presidential election in each Congressional district, every state assigns its Electors to the winner of the statewide Presidential election.

Given President Trump’s unprecedented suggestions that he would not accept the result of an election that he loses, the question has arisen whether he might attempt to subvert that result by exploiting an apparent loophole. Suppose that more ballots in a state are cast for Democratic nominee Joseph Biden’s slate of electors than for President Trump’s slate but that Trump, perhaps making unsubstantiated claims of fraud, prevails upon the state’s legislature to change the rules and directly appoint his Electors to the Electoral College. Such a course of action would raise two questions: First, can a state legislature change its method for selecting Electors after it has conducted a popular Presidential election? Second, if so, can it disregard the state constitutional requirements for legislation, including presentment for and the possibility of a veto by the governor where state constitutional law so requires?

There may be reason to think that the answer to the first question is no—that a state legislature cannot change the rules of the game after the final out—but we shall assume, purely for the sake of argument, that such a change would be permissible prior to the convening of the Electoral College. Nonetheless, the answer to the second question is clearly no. Even if a state legislature has the power to assign its Electors to the loser of the state’s Presidential election, it can only do so by complying with the state’s constitutional procedure for lawmaking, including gubernatorial participation.

Why? In short, because the Presidential Electors Clause does not delegate any authority to state legislative majorities to circumvent their established state constitutional procedures for enacting legislation. On the contrary, as the Supreme Court held in the 1932 case of Smiley v. Holm, when the Constitution assigns a lawmaking function to a state legislature—as the Presidential Electors Clause does—the state’s own constitutional requirements for lawmaking guide and constrain how the state legislature performs that function.

The Presidential Electors Clause does not grant to state legislatures or state legislators any authority to make law outside of a state’s constitutionally mandated procedures. Rather, it gives states the authority to appoint electors and state legislatures the authority to direct the manner of appointment: “Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors.”  U.S. Const. art. II, § 1, cl. 2. Thus, state legislatures have no power to choose electors themselves unless they first “direct” that the “manner” of appointment should be legislative selection of electors.

Directing the manner of elector appointment is a lawmaking function that involves laying out a legal framework for the appointment process. As the Supreme Court recognized in Smiley, when a state legislature performs a lawmaking function—even at the behest of the federal government and as directed by the federal Constitution—it must follow the legislative process outlined in its state constitution. The Court reaffirmed Smiley and the proposition that state regulation of elections is a legislative function that includes “the Governor’s veto” in the 2015 case of Arizona State Legislature v. Arizona Indep. Redistricting Comm’n.

Smiley involved a constitutional delegation of authority nearly identical to the one that would be at issue should a state legislature try to hand its Electors to Trump: the directive of the Elections Clause of Article I, Section IV, that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” Indeed, in the Arizona State Legislature case, even the dissenting Justices noted the Presidential Electors Clause’s “considerable similarity to the Elections Clause.”

In Smiley, the Minnesota legislature, using its Article I, Section IV authority, passed a bill reapportioning congressional districts, but Minnesota’s governor vetoed the bill. Ignoring the governor’s veto, the Minnesota legislature deposited the bill with the secretary of state. Litigation ensued, challenging the validity of the bill. Upholding it, the state supreme court was persuaded by the same argument that we would expect Trump’s supporters to make: that the state legislature was acting as an agency discharging federal duties and could therefore disregard state procedural constraints, including the state constitution’s gubernatorial veto provision. But the Supreme Court roundly rejected this contention and reversed the Minnesota Supreme Court’s decision, finding that the legislature was performing a lawmaking function rather than acting as a federal agency. The Court squarely held that when the Constitution assigns to state legislatures a lawmaking duty, it assumes and accepts that the legislatures come with their ordinary constraints, including gubernatorial participation in legislation. 

Smiley thus fully resolves the permissibility of gubernatorial bypass through an ineluctable syllogism: (1) When delegating lawmaking power to state legislatures, the federal Constitution takes state legislatures as it finds them, subject to state constitutional rules; (2) crafting rules governing the manner of federal elections is a lawmaking power; and therefore (3) state legislatures cannot alter statutes governing the selection of Presidential electors except through their ordinary state lawmaking procedures, including gubernatorial presentment where required.

To be sure, the federal Constitution also assigns to state legislatures some other responsibilities that do not require compliance with state constitutional conditions for lawmaking. For example, states either grant or withhold their consent to proposals for a constitutional convention and to amendments proposed by Congress or such a convention. Likewise, they provide an up-or-down vote on the carving up or conjoining of their territory. Yet while such decisions may be momentous, they do not constitute lawmaking. Accordingly, the Smiley Court explained that such non-lawmaking functions fall outside of state constitutional requirements for lawmaking. 

Could it be argued that one or more of those other functions also ought to have been deemed lawmaking and thus subject to state constitutional strictures? Perhaps, but even if so, that would only add to the list of what ought to count as lawmaking. It would not in any way undermine the conclusion that fashioning rules for the manner by which a state chooses electors clearly counts as lawmaking as a matter of basic logic and under Smiley’s binding precedent.

A comparison of the Presidential Electors Clause and the Elections Clause at issue in Smiley reveals that they are indistinguishable in all relevant respects. These two elections clauses are the only federal constitutional provisions directing state legislatures to determine the “manner” of elections or appointments. In its analysis of the subject matter of the Elections Clause, the Smiley Court reasoned that prescribing the “manner” of elections involves creating a code “in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns.” The Court found that these details, as well as time and place requirements, would be “nugatory if they did not have appropriate sanctions in the definition of offenses and punishments.” The Court then concluded that the Elections Clause implied the authority to create a complex, enforceable code—a process that “involves lawmaking in its essential features and most important aspect.” The Presidential Electors Clause is no different. By instructing state legislatures to direct the manner of elector appointment, the Clause gives state legislatures the lawmaking authority to create an enforceable code governing every detail of the appointment process. (Notably, in his concurrence in Bush v. Gore (2000), Chief Justice Rehnquist referred to “the legislative scheme for appointing Presidential electors” interchangeably with “the Florida statutory scheme” governing the appointment process (emphasis added)). 

Furthermore, as in Smiley, so too for the Presidential Electors Clause, “the term defining the method of action, equally with the nature of the subject matter, aptly points to the making of laws.” The Presidential Electors Clause does not ask state legislatures to “appoint” or “choose” electors, as it could have if the Framers had intended for the legislatures to act as electoral bodies rather than lawmakers. Instead, it asks state legislatures to “direct” the manner of appointment.

The Presidential Electors Clause’s use of the word “direct” is also notable. Wherever the verb “direct” appears in the Constitution, it describes a lawmaking function (usually by Congress). Thus, like “prescribe,” “direct” is a word that the Framers apparently associated with legislative activity. Indeed, the words “prescribe” and “direct” were also used interchangeably in 1788 state legislation passed under the Presidential Electors Clause and the Elections Clause. For example, some state laws “directed” both the time, place, and manner of congressional elections and the manner of elector appointment, while other states “prescribed” both the time, place, and manner of congressional elections and the manner of elector appointment. The Supreme Court has also used the word “prescribe” to refer to the exercise of Article II, Section I authority by state legislatures. See McPherson v. Blacker (1892) (referring to “the legislature prescrib[ing] as a method of [elector] appointment choice by vote”). This treatment of the terms “direct” and “prescribe” as synonyms, by both early legislators and the Supreme Court, shows that the Presidential Electors Clause’s “direct” conveys lawmaking authority just as much as the Election Clause’s “prescribe” does.

Accordingly, as the Smiley Court explained, because the Constitution confers on state legislatures authority “for the purpose of making laws for the state, it follows, in the absence of an indication of a contrary intent, that the exercise of the authority must be in accordance with the method which the state has prescribed for legislative enactments.” There is “no suggestion in the federal constitutional provision of an attempt to endow the Legislature of the state with power to enact laws in any manner other than that in which the Constitution of the state has provided that laws shall be enacted.”

There is thus no daylight between the recently reaffirmed holding of Smiley and the circumstances a court would face were a state legislature to ignore its governor and purport to assign its Electors directly to the loser of the state’s Presidential election. When using its authority under the Presidential Electors Clause, the legislature must comply with the lawmaking procedures prescribed in the state constitution.

Postscript: For the benefit of readers who wish to delve more deeply, we have prepared a somewhat longer version of the foregoing observations, including page citations and a second section confirming that evidence of the original understanding clearly points to exactly the same result.


Grace Brosofsky is a 2020 graduate of Cornell Law School, currently working for the Montana Office of the Public Defender. Michael C. Dorf is Robert S. Stevens Professor of Law, Cornell Law School. Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus, Harvard Law School. His Twitter handle is @tribelaw.


George said...

Am I correct in thinking that, in order to make sense of this position with Bush v. Gore, one must agree with Chief Justice Rehnquist that the Florida Supreme Court went too far, or at least accept it as definitive? If not, then the position here might be in considerable tension with Bush v. Gore, unless one believes there is a principled distinction between state governors and state supreme courts under the federal Constitution. I can't think of one.

Greg said...

While it's not the focus of this post, I'm pretty sure the answer to the first question has to be yes in the general sense, although it may be no in the specific case of changing the rules only because the legislature doesn't like the result.

What if the building holding all of the state's ballots burned down?

More importantly for 2020, what if for some reason it was impossible to reach a clear election result, or impossible to reach such a result in time to seat electors?

Joe said...

Am I correct in thinking that, in order to make sense of this position with Bush v. Gore, one must agree with Chief Justice Rehnquist that the Florida Supreme Court went too far, or at least accept it as definitive.

I'm unsure how this follows, noting that Rehnquist's wasn't the controlling opinion.

The rejoinder is that the Florida Supreme Court was applying existing law, including state constitutional law, which involved some flexibility in applying the rules. The court here need not have changed the ultimate law, a legislative function, by doing this. If the law did change, the courts still would have some flexibility in applying it, but with some different results.

The law was created by the legislative and governor signing it into law as well as when relevant the state constitutional law. The courts interpreted it. As RBG's dissent noted, the courts did not so gravely abuse its discretion to a degree the U.S. Supreme Court should have deemed it a Art. II violation.

George said...

Joe, fair to say that the Per Curium didn't really get into this issue. (I think it actually expressly avoided it.) Tension is not the best way to put it, or a reasonable way at that.

The point of my question, I think, is to understand whether there is some limit to a governor's or state supreme court's authority under Art. II to affect the way in which the legislature appoints its electors. You point out that, in Bush v. Gore, "the courts did not so gravely abuse its discretion to a degree the U.S. Supreme Court should have deemed it a Art. II violation." That assumes some limit on a state supreme court under Art. II--an abuse of discretion standard, you seem to suggest. That's what I understand to be the takeaway of Chief Justice Rehnquist's concurring opinion. If so, and if that is a viable theory going forward, how does it apply to state governors? If a state supreme court is expected under Art. II to be mere faithful agent to the state legislature (I'm not saying it is--and it probably isn't), then why isn't that required of a state governor? If a state supreme court is expected under Art. II to apply the will of the state legislature only reasonably (this is where I'm confused), then how would that apply to a governor's veto? Is a veto a reasonable way to execute the will of the legislature. Seems not, no?

George said...

I realize I had never read Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, which throws a complete wrench into what I'm suggesting, which is the "Independent State Legislature Doctrine." (Don't be surprised if this doctrine is revitalized this year.)

Michael A Livingston said...

This is an interesting analysis, but from the perspective of (say) the PA Republicans, it suggests that there is at least a colorable argument in the opposite direction. So, it’s possible they would take their chances on such a move, particularly if they argue that the PA Supreme Court (an elected body which is now majority Democrat) has massaged the election laws in the opposite direction. In other words, the issue that you are discussing would most likely arise as one of a number of different back-and-forth issues in a number of different states and not as a single, isolated problem. It seems like rather an over-the-top move for the legislature, but we’re in an over-the-top environment, so it’s difficult to predict. Nice piece.

Frank Willa said...

Agree with the answer to the first question, and find the reasoning to support the answer to the second compelling. So, am wondering if brought to court should any ruling in favor of changing the manner be limited to a 'prospective' holding? That is does my citizen expectation of the manner being the one at the time I cast my ballot, being the same when the electors are named; or, put otherwise, do I have a reasonable and justifiable reliance that '...that a state legislature cannot change the rules of the game after the final out...', nor will that 'move be upheld' with regard to my vote?

David Ricardo said...

This post is as unassailable as it is irrelevant. Consider the following scenario.

1. All votes are counted except Pennsylvania whose vote will decide the election and which is still counting mail-in votes. The state is trending toward Mr.Biden but the count is not finished.

2. The state legislature, controlled by Republicans passes a resolution stating that the manner of selecting electors will be by the lower house of the state legislature. The resolution calls for all existing ballots to be sealed and destroyed as they are no longer relevant.

3. The lower house selects a slate of pro-Trump electors which effectively awards the election to Trump.

4. The Justice Dept. sides with Trump. U. S. Marshals seize the ballots. The case goes to the Supreme Court. Five justices, Alito, Thomas, Kavanaugh, Gorsuch and Barrett vote to uphold the state legislature and order the electors selected by the legislature to be the sole authorized ones and the votes are immediately destroyed by the Marshals under order of the Court. Roberts joins them only because he thinks a 6 to 3 decision is more legitimate than a 5 to 4 decision.

5. The logic of the Court majority is that the Pennsylvania legislature has acted in accordance with the Constitution; the legislature has determined the manner in which the electors are selected by a resolution process that does not involve the Governor and the precedents and all other legal positions opposing that interpretation of the Constitution by the Court that have been documented by the post are simply ignored.

6. Trump is elected and no one knows what the actual vote in Pennsylvania would have been so he claims victory and legitimacy. Roberts swears him in.

Does this violate all of the logic and precedents and decency and democracy? Are the arguments in this post absolutely correct but play no role in the decision? Is the decision unfair and in violation of every legal, ethical and societal norm? Yes, yes, yes. That don’t matter.

The problem with this post is that academics and people with intellectual integrity cannot seem to grasp the fact that Republicans no longer play by the rules, no longer respect anything but their own interests, no longer have any interest in democratic rule. They only care about their own power. To believe otherwise, as those who authored this post and others who have some shred of decency left seem to do is simply extreme naiveté. One wonders how many betrayals it will take by the conservatives before those who believe in the rule of law catch on to what is really happening or will they ever?

Note: Several years ago the author of this post inadvertently offended those who post and apologized for it and decided not to post again for fear of again inadvertently offending. But the topic of the post is too important not to point out that even if the law and the facts and logic are on the side of right, to expect Republicans not to violate the trust they are given by being elected to office and to expect the conservatives on the Court to abide by anything other than their own political desires is disingenuous to the extreme.

Joe said...

If a state supreme court is expected under Art. II to be mere faithful agent to the state legislature (I'm not saying it is--and it probably isn't), then why isn't that required of a state governor? If a state supreme court is expected under Art. II to apply the will of the state legislature only reasonably (this is where I'm confused), then how would that apply to a governor's veto? Is a veto a reasonable way to execute the will of the legislature. Seems not, no?

The basic idea as I see it in the OP is that there is a "legislative power" which is responsible in formulating the manner of elections. For limited things, such as an up/down vote regarding an amendment, the legislature itself does this.

But, in general, an independent commission or more regularly a legislature with a governor that has the power to veto a bill, has the "legislative power." So, if a state has a Democratic governor, a Republican legislature on its own could not change the election law, including how how electors are chosen.

Rehnquist argued that the Florida Supreme Court violated the constitutional power of "the legislature" to fix the rules here by so unreasonably applying the law. The dissent argued it did not. The dissent seems to grant the possibility of a state court so egregiously acting, but generally says the state courts should be given wide discretion. In fact, RBG's dissent there says this has constitutional roots.

So, I'm not sure where the debate is that Rehnquist is "right" here. As to the governor, yes, the executive might somehow violate the "legislative" power over elections somehow. For instance, when the Secretary of State runs elections or counts votes.

But, the veto is PART of the process. The legislative process includes the legislature drawing up a bill and then the governor getting to veto. I'm unsure how a veto can be unreasonable here. There is some dispute there on just what the "legislative power" entails-- that's the Arizona case. But, a broader view of legislative power seems to be the law.

Of course, as one comment notes, how much this "all matters" remains to be seen.