Can a State Legislature Give Itself the Power After Election Day to Appoint a Slate of Presidential Electors for Its State?
45 Pages Posted: 1 Dec 2020
Date Written: October 14, 2020
Suggestions are swirling that some state legislatures might try to void a close popular vote in this year’s presidential election and after Election Day give themselves the power to appoint their state’s presidential electors or certify a slate of electors themselves. This Note analyzes the prospects for such action in eight swing states.
We begin by recounting an effort in the Louisiana legislature in 1960 to replace a slate of Democratic electors appointed by the voters.
With that history in place we ask whether the legislatures in these eight states can convene after Election Day. For those that can the next Part argues that as a matter of federal and state constitutional law they must repeal an existing permanent statute.
The states with a political alignment making repeal and replace possible must then contend with the provisions of Title 3. 3 U.S.C. § 1 requires electors to be appointed on Election Day unless, as specified in 3 U.S.C. § 2 the state has “failed to make a choice” on Election Day. We review the history of these provisions and conclude that 3 U.S.C. § 2 does not allow a legislature to intervene and appoint electors when the popular vote count is close. Indeed, we note that four of the states in focus have taken advantage of 3 U.S.C. § 2 with explicit statutory provisions in case of a tied popular vote. As late as 1968 another one of these states took of 3 U.S.C. § 2 by giving the legislature appointment power if no slate of electors received a majority of the popular vote.
We conclude by explaining that in seven of the eight states it would be clearly contrary to state law for the legislature to intervene and certify a slate of electors by itself. In the one state in which that might be possible we argue that the legislature cannot be convened in special session.
Keywords: Electoral College, elector appointment, 2020 election
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