The Independent View: State's Legislature Cannot Appoint Its Preferred Slate of Electors

The President is chosen by the Electoral College, which is composed of Electors from each State. The Constitution Delegates to Congress the Choice of when Presidential Electors must be Appointed, and to State Legislatures the Power to Choose the Manner of Appointing these Electors.

In carrying out these Constitutionally Delegated Powers, Congress has Designated Election Day as “the Tuesday after the first Monday in November,” and for more than a Century, All States have Selected their Electors based on the Popular Vote.

Although the Power to Choose the Manner in which Electors are Appointed means that State Legislatures theoretically could Reclaim the Ability to Appoint Electors Directly before Election Day, they may Not Substitute their Judgment for the Will of the People by Directly Appointing their Preferred Slate of Electors after Election Day.

Nor may they use Delays in Counting Ballots or Resolving Election Disputes as a Pretext for Usurping the Popular Vote. Doing so would Violate Federal Law and Undermine Fundamental Democratic Norms, and it could also Jeopardize a State’s Entitlement to have Congress Defer to its Chosen Slate of Electors.

The Constitution provides that Each State “shall appoint” its Slate of Electors for President “in such Manner as the Legislature thereof may direct.” The Legislature in Each State therefore has Plenary Power to determine how the State will Select its Electors. The Electors Selected by each State must “meet in their respective states and vote by ballot for President and Vice President,” then Transmit Lists of All their Votes to the President of the Senate for Counting “in the presence of the Senate and House of Representatives.” U.S. Const. Amend XII.

The United States’ Long History of Selecting Presidential Electors through a Popular Vote has Established an Important and Fundamental Democratic Norm of Citizens participating in choosing the President. Once a State has held an Election, a State Legislature’s Post-Election Day Appointment of its Own Preferred Slate of Electors not only would Contravene this Fundamental Democratic Norm, it would also Violate Federal Law requiring that All States must Appoint their Electors on Election Day, the “Tuesday after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.” 3 U.S.C. § 1.

A State Legislature’s attempt to Substitute its Preferred Electors for those Chosen through a Popular Election held pursuant to State Law would also Deprive the State of Protections in Federal Law that Require Congress to Honor the State’s chosen Electors.

The Electoral Count Act (“ECA”) includes a “safe harbor” Provision that Treats as “conclusive” a State’s Chosen Slate of Electors if Two Criteria are Satisfied: (1) the Electors must be Chosen under Laws Enacted Prior to Election Day, and (2) the Selection Process, including Final Resolution of any Disputes, must be Completed at least Six Days Prior to the Meetings of the Electors. 3 U.S.C. § 5.

This year, the ECA “safe harbor” Deadline is December 8th, 2020. A Post-Election Day Appointment of a State Legislature’s Preferred Slate of Electors would almost always Deviate from the Legal Process for Appointing Electors established by the State Prior to Election Day.