In the weeks leading up to November 3, Americans cast their ballots for presidential electors. The results in most states are clear.
But in six states they are not clear. Nor are they likely to be any time soon. Despite media efforts to ignore it, evidence of voting irregularities continues to mount. It has now been creditably reported that the pattern of vote accumulation in Pennsylvania and Georgia suggests the official results in those states are fictional.
As I have explained previously, both federal law and the Constitution assign to the legislatures of the contested states full responsibility for addressing the situation. Thus far, however, lawmakers have failed to assume that responsibility. They thereby invite the danger that their state may help elect a presidential candidate their constituents rejected.
Why have lawmakers been inactive? A justification in some states is that state law requires that presidential electors be chosen by the voters. Lawmakers argue that because of a recalcitrant governor, the legislature cannot come into session, cannot pass a law calling a new election, and cannot choose presidential electors itself.
This position is morally wrong because it rewards election tampering. Moreover, it violates the spirit of federal law: U.S. Code, title 3, section 2 provides that when a state election has failed to produce a winner, “the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
The assertion that the legislature cannot act also contradicts long-settled Supreme Court precedent. That precedent holds that a state legislature may always choose its state’s presidential electors without gubernatorial approval.
Article II, Section 1, Clause 2 of the Constitution prescribes that, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .” The Supreme Court has given the language I’ve italicized the widest possible interpretation.
For example, in Ray v. Blair (1952) (pdf) the Supreme Court ruled that the state legislature’s power over electors is so great it may require them to pledge in advance for which candidates they will vote. In Chiafalo v. Washington (2020) (pdf), the court went even farther—ruling that a state legislature’s power includes dictating how electors vote after the legislature chooses them.
Both cases relied heavily on what lawyers call “practical construction”—that is, actual political practice over the years. Both cases further relied, heavily and repeatedly, on the most important Supreme Court Electoral College case of all: McPherson v. Blacker (1892) (pdf).
The McPherson case arose because the Michigan legislature—like the legislatures of Maine and Nebraska today—decided to let the people vote for presidential electors by district. One slate of elector-nominees sued, arguing that only at-large election was constitutionally permissible.
The court unanimously upheld the Michigan legislature’s districting plan in an opinion written by Chief Justice Melville Fuller. Like the Supreme Court’s subsequent Electoral College cases, the McPherson case paid much attention to historical practice: The court’s opinion included a sweeping survey of presidential elections in the early republic. The opinion emphasized the nearly unlimited extent of a state legislature’s power over that state’s presidential electors. Here are the highlights of the McPherson ruling:
* The state power to choose electors does not come from its own laws or constitution. It comes directly from the U.S. Constitution. In modern judicial language, in choosing presidential electors the state carries out a “federal function” (pdf).
* Each state chooses its own method of appointing electors. But the Constitution specifies the precise agency that must do the choosing. The Constitution designates the state legislature as that agency—and only the state legislature. The court compared the situation to presidential run-off elections in the House of Representatives: each state votes as a unit but through the agency the Constitution designates (its House delegation).
* Control by the state legislature over the choice of electors is “plenary.” The dictionary tells us the meaning of “plenary” is “unqualified” or “absolute.”
* The opinion repeatedly makes it clear that in this context the Constitution’s designation of the state legislature does not include the governor’s role in signing and vetoing bills. It means only the state’s representative assembly. Just as state legislatures then chose U.S. Senators without gubernatorial involvement, so did state legislatures control presidential election process.
* Admittedly, the court’s historical examples show that lawmakers may opt to regulate choice of electors by passing ordinary legislation the governor can sign or veto. But they also may act without the governor by simple resolution. For example, in further research I learned that in 1788 the Massachusetts legislature used a resolution to allow the people to nominate electors, with the legislature selecting among the nominees. And in 1800 the Massachusetts legislature assumed the entire power to appoint electors itself, also by simple resolution.
Before the McPherson case was decided, the U.S. Senate issued a report on appointment of presidential electors. Chief Justice Fuller’s opinion adopted the critical language from the report. Here it is:
The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state . . . . This power is conferred upon the legislatures of the states by the constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.
Just one qualification on that wording: Pursuant to the Constitution’s Same Day Clause, Congress has designated the first Tuesday after the first Monday in November as the day for choosing presidential electors. So it is unlikely a state legislature could overrule the will of a state’s voters and choose electors at a later time.
But when, as Congress also recognizes, the state’s vote has produced no clear result, then there is, in the Supreme Court’s words, “no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.”
Bottom line: If a state’s presidential vote totals remain compromised, its legislature has no excuse for failing to act.
Rob Natelson, a retired constitutional law professor and historian, is Senior Fellow in Constitutional Jurisprudence at the Independence Institute in Denver. A version of this article originally appeared in The Epoch Times.