Election Day is days away, but as of Thursday about 80 million voters had already cast a ballot to choose the next president, whether by dropping their ballot in the mail, using a drop box, or casting a vote at an early-voting location. Even as voters around the country are casting their ballots (many waiting in intolerably long lines to do so), hanging over this year’s election is the possibility that conservative-dominated state legislatures may seek to override the will of the voters after all the votes are cast and counted. As Barton Gellman reported in the Atlantic, the Trump campaign is actively considering the possibility of disregarding the certified election counts and turning to state legislatures to appoint a slate of pro-Trump electors without gubernatorial signoff in battleground states, such as Pennsylvania and Michigan, where Republicans remain in legislative control. This nightmare scenario—if it comes to pass—would precipitate a constitutional crisis the likes of which we have never witnessed in our lifetimes.
The fate of our democracy could hang on how this Supreme Court will treat a seemingly simple, but momentous, question: What does the grant of power to the “Legislature” mean in the Constitution’s presidential elector clause, which provides that states shall “appoint, in such manner as the Legislature may direct, a Number of Electors, equal to the whole number of Senators and Representatives to which the State may be entitled in Congress”? Does the Constitution’s conferral of authority on the “Legislature” allow a state’s lawmakers to act unilaterally to appoint electors of their choosing after the fact, in defiance of the state’s own lawmaking process?
Our Constitution’s text and history demonstrate that it does not. Our current Supreme Court is deeply conservative, particularly with the addition of Amy Coney Barrett. It would require a radical disregard of constitutional principles on the justices’ parts to sanction a state legislature’s unilateral power grab to override the will of the voters.
The only way a legislature can “direct” how its state chooses electors under any objective reading of the Constitution is by passing a bill, signed into law by the state’s governor. That’s it. Every state has decided that the votes of the people, not the preferences of the state’s legislature, determine the choice of presidential electors. Absent a duly enacted state law that grants a legislature the privilege, nothing in the Constitution should give state legislatures power to simply select presidential electors on their own. And small wonder that no state has passed such a law, since doing so would take presidential elections away from a state’s voters—not exactly a popular idea.
Our Constitution’s Framers were deeply concerned about giving state legislatures an outsize role in the selection of the president. In Article 1, Section 3, the Constitution, as originally ratified, gave state legislatures the unilateral right to choose U.S. senators, but refused to give legislatures a similar say over the U.S. president. During the Constitutional Convention, when Elbridge Gerry proposed that state legislatures have the power to select the president, “the noes were so predominant” that the votes were not even counted. Ultimately, in the presidential elector clause, the Constitution gave state legislatures the power to “direct” “the manner” of the appointment of the state’s electors.
The presidential elector clause, in other words, gave legislatures a lawmaking power over the system for selecting electors, not an electoral power to choose electors on their own. In numerous parts of the Constitution, including grants of power regarding the census and the conduct of criminal trials, the word direct was synonymous with a power to make laws. And, in form, the presidential elector clause closely resembles Article 1’s elections clause, which gave state legislatures power to regulate the mechanics of congressional elections, including the “manner” of the election. State legislatures were given broad legislative power to control the process of appointing electors, but were not given the right to choose presidential electors on their own.
As debates over the Constitution’s ratification demonstrate, “the power over the manner only enables [States] to determine how these electors shall elect.” Thus, as Justice Clarence Thomas recently observed in Chiafalo v. Washington, by giving state legislatures the power to direct the manner of appointment of electors, “Article II requires state legislatures merely to set the approach for selecting Presidential electors.” What this means is that, under the original meaning of this provision, a state legislature cannot select the state’s presidential electors until it has first passed a law that “direct[s]” that a state’s presidential electors will be chosen by the legislature.
In the area of election lawmaking, as the Supreme Court recognized nearly a century ago in Smiley v. Holm, the Constitution does not “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. … And provision for [a veto] as a check in the legislative process cannot be regarded as repugnant to the grant of legislative authority.” Smiley continues to command respect even from the conservative wing of the Supreme Court, including in a case decided just five years ago.
Earlier this week, in a concurring opinion in Democratic National Committee v. Wisconsin State Legislature, Justice Brett Kavanaugh argued that “text of the Constitution requires federal courts to ensure that state courts do not rewrite state election laws,” insisting that “Article II expressly provides that the rules for Presidential elections are established by the States ‘in such Manner as the Legislature thereof may direct.’ ” In Kavanaugh’s view, courts should not second-guess legislatively crafted voting deadlines designed to prevent what he called “chaos and suspicions of impropriety that can ensue” if ballots “flow in after election day and potentially flip the results of an election.” Kavanaugh’s controversial theory—which professor Nate Persily has called the “most full-throated defense of the independent state legislative doctrine that we’ve had from the Supreme Court since the concurrence of Bush v. Gore”—would license federal courts to displace a state court’s interpretation of state law, a result hard to square with federalism principles. But as radical as it is, it would not seem to justify jettisoning the basic lawmaking process, which includes a governor’s veto.
Indeed, the Founding generation understood the presidential electors clause to require state legislatures to comply with the procedural constraints on lawmaking in their state constitutions, including presentment to the governor for a veto. Through these checks and balances, state constitutions were a key part of the “double security” a federalist system provided.
In 1788, Massachusetts and New York had constitutions that provided veto mechanisms, and both followed their state constitutional processes in considering how to direct the appointment of electors. Even states that did not provide for a gubernatorial veto understood the legislature did not possess the unilateral power to choose the state’s electors. In 1788, in South Carolina, for example, the state Legislature determined that it would select the electors itself, but before doing so, it passed legislation “direct[ing]” the appointment power to itself through its usual lawmaking process. As these Founding-era legislative enactments reflect, it was understood that state legislatures were required to comply with state constitutional lawmaking requirements when exercising their power to “direct” the “manner” of appointing presidential electors.
The 2020 election is already underway, and millions of voters across the country have already cast their votes for president (and electors committed to that candidate) in the “manner” that state legislatures have “direct[ed]” for this year’s presidential election. Up through Election Day, voters will select electors under that system. It is of course true, as the Supreme Court observed in Bush v. Gore, that “the state legislature’s power to select the manner for appointing electors is plenary” and that state legislatures “can take back the power to appoint electors.” But the Constitution’s text and history make plain that legislatures cannot do so unilaterally, and certainly not once voters have made their choice on the prescribed date pursuant to the prescribed rules.
The Constitution grants state legislatures the power to make laws to “direct” the “manner” of appointing electors, not the ultimate authority to choose electors. Any attempt to change the state’s system for appointing electors and override the will of the voters by making an end run around the governor’s authority to veto laws passed by the legislature would be a blatant attack on our constitutional system.
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