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Thursday, October 1, 2020

Electors and the Will of the People

QUESTION
We are grateful for your Business Continuity Plan. Over the last few months, we have relied on it to keep the company safe through the pandemic. We put up a bulletin board that posts all the updates and pandemic news, too. 

We are giving everyone off to vote on Election Day, even those of us who have been working remotely. Everyone will be paid, and that is hundreds of people! Last week a poster said that it didn’t matter if we voted because our state’s electors are able to overrule our vote. 

We need some guidance in responding to that poster because others are now saying the same thing, and it is demoralizing a lot of employees. We want to know that our vote counts! 

Can you provide some guidance or a statement that tells us if this poster’s view – that electors can overrule our vote – is correct?

ANSWER
Thank you for working with our Business Continuity Plan. It would be best if you were keeping it current at all times, as business continuity is critical to a company’s survival in the face of a range of debilitating events. Our Business Continuity Plan is inexpensive, comprehensive, user friendly, and collaboratively drafted with one of our Subject Matter Experts. You can get information about the Business Continuity Plan by clicking HERE.

I will answer your question, although it is a bit off the beaten path of regulatory compliance. However, inasmuch as your concerns derive from providing business continuity initiatives to your fellow employees, I think it is important to set forth certain salient facts. I make no claim here to providing legal advice, and I am certainly not an expert in election law. If you have further questions, I suggest you contact the election authorities in the states where your employees vote.

Let me begin by restating your question, as follows: May a state legislature appoint a preferred slate of electors to override the will of the people after the election?

First, allow me to provide a brief overview. As you may know, the president is chosen by the Electoral College. The Electoral College consists of electors from each state. The Electoral College is established in Article II, Section 1 of the U.S. Constitution, and it was given specific procedures, as set forth in Article II, Section 1, Clause 3. But the Twelfth Amendment to the Constitution replaced the initial procedures with the procedures for electing the president and the vice president, which essentially provided for separate votes for president and vice president, and specified that those individuals must be from different states.

The term “Electoral College” is found nowhere in the Constitution.[i] The body or entity that is called the Electoral College meets every four years exclusively to elect the president and vice president. Currently, there are 538 electors. A majority of at least 270 electoral votes wins. Article II, Section 1, Clause 2 of the Constitution provides that each state legislature is required to determine how electors for that state are to be chosen. Any person holding a federal office, either elected or appointed, is disqualified from being an elector.

The Constitution gives Congress the choice of when presidential electors must be appointed. It gives state legislatures the power to choose the manner of appointing them. In carrying out these constitutionally delegated powers, Congress designated Election Day as “the Tuesday after the first Monday in November.” 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,[ii] 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.[iii] 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. I will return to counting ballots and disputes shortly.

Although it may seem that we are voting directly for the president and vice president, when we cast our votes for president, in reality we do not do so directly. Instead, we vote for electors who then choose the president and vice president. This process is governed by provisions in the U.S. Constitution and federal and state laws.

Secondly, the Constitution provides that each state must appoint its slate of electors for president “in such Manner as the Legislature thereof may direct.”[iv] The legislature in each state, therefore, receives a power called “plenary power” to determine how the state will select its electors.[v] The electors chosen 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.”[vi]

While the Constitution gives states, through their legislatures, the power to choose the manner for appointing electors, it delegates to Congress the power “to determine the time of chusing (sic) Electors.”[vii] The Constitution, in turn, provides that all states must appoint their electors on the “Tuesday after the first Monday in November, in every fourth year succeeding every election of a President and Vice President” – which falls on November 3rd this year.[viii]

That November day is widely known to Americans as Election Day.

Thirdly, when a state has held an election, the legislation may not substitute its judgment for the will of the people. To do so would be an instance of a state legislature usurping the popular vote, which would violate federal law.

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 (viz., the “Tuesday after the first Monday in November, in every fourth year succeeding every election of a President and Vice President”).[ix]

Furthermore, 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. Indeed, 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 the final resolution of any disputes, must be completed at least six days prior to the meetings of the electors.[x]

This year, the ECA “safe harbor” deadline is December 8, 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, with the possible exception of North Carolina.[xi] Although the ECA’s “safe harbor” criteria are not mandatory, the consequences of failing to adhere to them are significant. Losing the “safe harbor” protection leaves Congress to decide which electors to count from a state, without mandatory deference to the preferences of either the state’s voters or legislature.[xii]

Fourthly, a state legislature substituting its preferences for the will of the voters raises several Constitutional concerns. To be sure, a state legislature’s post-Election Day substitution of its own preferences for those of voters raises constitutional concerns.[xiii] The Supreme Court has explained that “[w]hen the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental,” and is subject to constitutional due process and equal protection guarantees.[xiv]

The due process clause, in particular, protects citizens’ reasonable reliance on the expectation under state law that they will be able to meaningfully exercise their fundamental right to vote.[xv] Even though this due process interest has most commonly been recognized in the context of protecting economic interests or preventing the retroactive application of punitive laws, “the principle is broad enough to encompass changes in voting rules that inappropriately unsettle reasonable expectations concerning the operation of the voting process,” as a post-Election Day legislative usurpation of the popular vote would surely do.[xvi]

Finally, it would take an extraordinary, virtually unprecedented, systemic failure in the election procedures that far exceed mere election delays and disputes to justify a state legislature’s intervention. Congress exercises its authority to decide when states must appoint their electors by designating a uniform federal Election Day. By the way, that does not mean that states cannot allow for early or absentee voting, of course, as all do in some form. In any event, pursuant to the ECA, the election must be held (and the casting of votes generally must be completed) on Election Day. There is a single, narrow exception to that statutory mandate which provides that where a “State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law,” the state’s electors may be appointed on a later date “in such a manner as the legislature of such State may direct.”[xvii]

Congress has never expressly defined what would constitute an election failure, but it is clear[xviii] that delays in a state’s completion of its vote tally or in resolving related disputes do not amount to a “failure to make a choice.” Indeed, state election laws not only provide for electors to be appointed based on the popular vote, they also establish various procedures, including post-election contest procedures, for resolving disputes related to presidential elections. Given that “[t]he essential point” of these provisions, originally enacted in 1845, “was to create a uniform national election day,” it would yield an absurd result contrary to Congress’s intent to interpret section 2 as authorizing a state legislature to nullify an election and appoint the state’s electors itself whenever an election contest cannot be resolved quickly.[xix]

There is an important distinction between casting votes and counting votes. It was anticipated that there could be a possibility that states might have difficulty completing the casting of votes on Election Day. Counting votes is an entirely different matter.

The ECA’s “safe harbor” provision makes this even more explicit: states may take up to five weeks to determine the final outcome of their elections, including by resolving any disputes, and still have their election results treated as “conclusive” by Congress as long as the electors were chosen under state laws enacted prior to Election Day.[xx] (And, states then have another six days before the Electoral College meets.[xxi]) Therefore, “the statute cannot reasonably be understood to have meant that if a state holds an election on Election Day but it turns out that the result is really, really close and takes some time to resolve, then the Legislature may step in and choose a slate of electors without regard to what happened on Election Day.”[xxii] An overly broad reading would transform Congress’s narrow exception for true election failures into a loophole that could allow state legislatures to usurp the popular vote any time it appears likely to yield a result that a state legislature views as unfavorable.

Thus, a continuation of post-election disputes up to (or even past) the “safe harbor” deadline alone cannot, by definition, constitute a failure that would permit state legislatures to invoke section 2 to appoint electors directly.

The United States has held elections amidst the Civil War, the 1918 Influenza Pandemic, and the Second World War, among other crises. Despite these challenging events that may have stressed the electoral process, the United States was able to complete the elections in each instance.[xxiii]

To conclude:

1) A state legislature’s post-Election Day substitution of its own preferences for those of voters would violate federal law.

2) Even if circumstances delay the final determination of the results of a state’s election beyond Election Day, a state legislature may not usurp the electoral process under the pretext of declaring a failed election.

3) Absent a true election failure - something the country has not experienced in modern history - federal law requires states to appoint electors on Election Day. 

4) A state legislature’s attempt to override the will of voters would also violate fundamental democratic norms, jeopardize the state’s entitlement to ensure that Congress defers to its chosen slate of electors, and raise significant constitutional concerns. 

Jonathan Foxx, Ph.D., MBA
Chairman & Managing Director
Lenders Compliance Group

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[i] For well-researched reading, see The Law of the Land: A Grand Tour of Our Constitutional Republic, Amar, Akhil Reed, (2015) 
[ii] I am using “Election Day” in the context of all states having some form of early and/or absentee voting that begins before Election Day. Many of the limitations on states exercising their Article II powers to appoint electors directly apply whenever voting has started in accordance with existing state law.
[iii] In researching this article, I considered, among other things, the thoughtful position papers of the National Task Force on Election Crises, which is a non-partisan, diverse, cross-partisan group of more than 50 experts in election law, election administration, national security, cybersecurity, voting rights, civil rights, technology, media, public health, and emergency response.
[iv] Article II, Section 1, Clause 2, U.S. Constitution
[v] McPherson v. Blacker, 146 U.S. 1, 26 (1892), which held that the “whole subject” of presidential elector appointment is “committed” to state legislatures.
[vi] Amendment XII, U.S. Constitution
[vii] Article II, Section I, Clause 4, U.S. Constitution
[viii] 3 U.S.C. § 1
[ix] Idem
[x] 3 U.S.C. § 5.
[xi] In 2001, in response to Florida’s experience during the 2000 presidential election, the North Carolina General Assembly amended state law to provide for the General Assembly to meet in a special session and name North Carolina’s electors itself if “by the sixth day before the electors are to meet, the election of electors has not been certified by the State Board of Elections,” or if the Governor has not named the electors “for some other reason.” N.C. Gen. Stat. § 163-213(a) (2001). But, even in this scenario, North Carolina law requires that the electors be named “in accord with [the legislature’s] best judgment of the will of the electorate.” (See also, Idem § 163-213(c)). Note: This statute has never been used and its legality has therefore never been tested.
[xii] In resolving election disputes, the Supreme Court has assumed a state’s intention to rely on the ECA safe harbor, in order to ensure that its electoral votes are counted. See Bush v Gore, 531 U.S. at 120 (Rehnquist, C.J., concurring).
[xiii] See Chiafalo v Washington, 140 S. Ct at 2324 n. 4
[xiv] Bush v Gore 531 (2000) at 104-05
[xv] Op. cit. XI, Idem. See also Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966); Amendment XIV, Section 1, Clause 2, U.S. Constitution; Curry v. Baker, 802 F.2d 1302, 1315 (11th Cir. 1986); Reynolds v. Sims, 377 U.S. 533, 555 (1964) Indeed, I would argue that a state legislature’s appointment of its own slate of electors after voters have cast their ballots would raise equal protection concerns by effectively elevating the preferences of some voters over others.
[xvi] For an excellent review of this perspective, see Due Process, Fair Play, and Excessive Partisanship: A New Principle for Judicial Review of Election Laws, Foley, Edward B., 84 University of Chicago Law Review 655, 731 (2017).
[xvii] 3 U.S.C. § 2
[xviii] See 3 U.S.C. §§ 1 and 2
[xix] Richard D. Friedman, Trying to Make Peace with Bush v. Gore, 29 Florida State University Law Review 811, 817 (2001). It is a well-settled principle that “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available.” Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982); see also Clinton v. City of New York, 524 U.S. 417, 429 (1998).
[xx] 3 U.S.C. § 5
[xxi] 3 U.S.C. § 7
[xxii] Op.Cit. xvii at 816
[xxiii] For further reading, see Postponing Federal Elections and the COVID-19 Pandemic: Legal Considerations, Shelley, Jacob D., Congressional Research Service (2020