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.