NYT op-ed on Congress's role counting electoral votes

I have this op-ed in today’s New York Times, “Democrats Have Been Shameless About Your Presidential Vote Too.” It begins:

As Republicans in Congress prepare to formally contest the outcome of the 2020 presidential election on Wednesday, many of them have cited precedent for their effort: similar complaints lodged by Democrats in other presidential elections. After Republican victories in 2000, 2004 and 2016, for instance, Democrats in Congress used the formal counting of electoral votes as an opportunity to challenge election results.

But the history of Democratic efforts to contest the outcomes of presidential elections is not a history worth emulating. On the contrary, it only underscores that the certification of a president-elect’s victory by the House and Senate is an improper forum for the airing of political grievances and an inappropriate occasion to readjudicate the decisions of the states concerning things like vote tallies, recounts and audits.

Four distinct paths for congressional Republicans in counting electoral votes

A lot of commentary over the last few weeks about Congress’s role in counting electoral votes that treats the decisions of members of Congress as binary: count, or object to counting. In reality, it’s a more subtle suite of options available to Republicans. There’s one option to count without protest formal, one option to count with some formal protest, and two options to refuse to count with some formal protest. Each could come with nuances depending on the state or the political situation. And there might be other objections other than “reject the counting of electoral votes,” but I’ll use that as shorthand for now. (And one could, of course, not vote, which adds further nuance, which maybe should be treated closer to a “nay” vote.)

Option One: Refuse to sign an objection, vote “nay” to rejecting the counting of electoral votes.

This is the most straightforward path that most Republicans and Democrats haven taken in 1969 and 2005 when objections were lodged and needed to be voted upon. One could take to the floor and express sympathy with the objection (as many Democrats did in 2005), but still refuse to sign onto the objection and vote “nay” at the end (i.e., vote in favor of counting the electoral votes).

Option Two: Sign an objection, vote “yea” to rejecting the counting of electoral votes.

This is the path of Senator Barbara Boxer and Representative Stephanie Tubbs Jones, the only two who signed an objection to Ohio’s electoral votes in 2005. (And it was the position of 42 members of Congress in 1969.) Those who are filing an “objection” ensure two hours’ debate on that state’s electors. At the end of the debate is a vote on the objection. Typically, of course, if you signed the objection, you’d probably vote in favor of the objection. Typically—more on that in Option Four.

Option Three: Refuse to sign an objection, vote “yea” to rejecting the counting of electoral votes.

It only takes one senators and one representative to prompt two hours’ debate on a state’s electoral vote. Some members of Congress might hang back, then vote in favor of the objection at the end. While Ms. Tubbs Jones was the only signatory to an objection in 2005, 30 other House Democrats joined her in voting “yea” to reject counting of Ohio’s electoral votes.

Option Four: Sign an objection, vote “nay” to rejecting the counting of electoral votes.

This may seem like the strange scenario. Why sign the objection, then vote against it? But that happened in 1969. Senator Hugh Scott voted against his own objection. He signed the objection then voted "nay" on it. Representative William St. Onge & Senator Warren Magnuson signed the objection but did not vote (Magnuson at least was "absent on official business"). It’s possible that some members of Congress just want a two-hour window to air their grievances by means of the objection, then at the end of the day still vote to count the electoral vote.

*

There are more subtle permutations, there are alternative ways of looking at these votes, and it might vary by state. But these, I think, are four distinct paths for voting. (Of course, at the end of the day, no objection will be successful—maybe a topic for another time.)

Ted Cruz misreads the history of 1876 in his bid to secure Acting President Nancy Pelosi

Senator Ted Cruz is the latest to lead a charge in Congress to object to counting to electoral votes from some states. It’s on the heels of embarrassing efforts by other Republicans, which is on the heels of other embarrassing efforts by Democrats in 2001, 2005, and 2017.

But Mr. Cruz’s proposal holds its own unique flaws I’ll lay out. First, it misunderstands a historical example he cites as precedent. Second, its timeline would ensure that Representative Nancy Pelosi, the presumptive Speaker of the House, would have the opportunity to serve as Acting President.

Mr. Cruz’s press release, on behalf of several other senators, provides in the relevant part:

The most direct precedent on this question arose in 1877, following serious allegations of fraud and illegal conduct in the Hayes-Tilden presidential race. Specifically, the elections in three states—Florida, Louisiana, and South Carolina—were alleged to have been conducted illegally.

In 1877, Congress did not ignore those allegations, nor did the media simply dismiss those raising them as radicals trying to undermine democracy. Instead, Congress appointed an Electoral Commission—consisting of five Senators, five House Members, and five Supreme Court Justices—to consider and resolve the disputed returns.

We should follow that precedent. To wit, Congress should immediately appoint an Electoral Commission, with full investigatory and fact-finding authority, to conduct an emergency 10-day audit of the election returns in the disputed states. Once completed, individual states would evaluate the Commission's findings and could convene a special legislative session to certify a change in their vote, if needed.

Accordingly, we intend to vote on January 6 to reject the electors from disputed states as not ‘regularly given' and ‘lawfully certified' (the statutory requisite), unless and until that emergency 10-day audit is completed.

(Set aside the necessity of an “emergency” audit in a presser January 2 from an election held November 3.)

How does an emergency 10-day audit happen? Congress would need to enact a statute to amend the Electoral Count Act of 1887 before January 6, when it's compelled by law to meet. That seems unlikely. Indeed, the presser suggests that they will object pursuant to the “statutory requisite,” having a stronger view of the Act than some others have written about. By its terms, any objections to a given state’s electors cannot yield debate lasting longer than two hours. There are fixed periods for adjournments, including a ban on any recess after five days. That means Congress would need to enact a new statute.

Mr. Cruz hasn’t publicly released any such draft. So the first stage is to get a statute drafted. It then has to go through both houses of Congress (including whatever filibuster rules make their way in the Senate) and secure the president’s signature.

The “commission” he envisions is not the same as the commission of 1877. That commission had the power to “resolve the disputed returns.” That was crucial to the commission’s work because of how electoral vote counting arose before the Electoral Count Act was enacted.

Before the Electoral Count Act, both Houses had to affirmatively agree to count votes. In 1873, for instance, one house refused to count votes cast for Horace Greeley, who had died before the Electoral College convened. If one house refused, the votes weren't counted—and in 1873, one house didn’t want to count votes for Mr. Greeley, so they weren’t counted.

The thick of Reconstruction was causing greater rifts in Congress and in the states. Electoral vote counting in 1873 was messy, including the decision to throw out votes from Arkansas and Louisiana—Louisiana, in particular, because some in Congress believed it lacked a republican form of government at the time. Lynchings of Black voters and the Colfax massacre were just a couple of the egregious acts occurring in the South.

In 1876, things were still messy, and the presidential election was extremely close. Democrats controlled the House, and Republicans controlled the Senate.

Republican electors, in favor of continuing Reconstruction, carried Florida, Louisiana, and South Carolina from the canvass, but alternative Democratic slates of electors also cast votes—in Florida with the assent of the attorney general and later the legislature, but in South Carolina with little legal authority. By today’s terms, the Republican slates were the “valid” ones. Both sides complained of fraud—the losing Democrats complained more, obviously.

When presented to Congress, the problem was that neither house would agree in a hyper-partisan atmosphere. The House would vote to count the Democratic electors, and the Senate the Republican electors. A dispute resolution mechanism was needed.

Enter the “commission.” It was maybe the best solution at the time because both candidates and both houses of Congress agreed to it.

The Commission would resolve any stalemate that might otherwise arise in Congress. The Commission was given the "same powers" as Congress, & its decisions could only be overridden if both houses of Congress agreed. (That wasn't just to "audit" & let the states know what happened. It was to, as Cruz notes, "resolve the disputed returns.")

The Commission, in a series of 8-7 votes, affirmed the Republican electors.

Importantly, the Electoral Commission wasn't principally created to investigate "allegations of fraud." It was created to resolve disputes to prevent electoral votes from getting thrown out because of disagreement between the two houses. Allegations of fraud confused the process, undoubtedly.

But it’s also a reason why Congress enacted the Electoral Count Act of 1887—to improve the process for counting electoral votes to prevent this problem again! Some highlights of the Act:

-When the president of the senate reads a state's votes, there can be an objection, but both houses have to vote to sustain it. That’s a presumption in favor of counting and prevents deadlock scenarios.

-If there's more than one slate of electors, each house votes, and if they agree they count that slate. If they disagree, they count the slate with the governor's signature. Again, a presumption in favor of counting, and a presumption of deference to any state canvass, recount, & contest.

-The Act also fixed limited times with circumscribed opportunities to object to prevent prolonged investigations into counting electoral votes. Again, given that the commission ultimately ratified what the initial state process yielded anyway, debate would be limited.

Mr. Cruz’s putative commission ignores all of these benefits to revert to the 1877 process—and a process that wasn’t principally driven by investigations of fraud.

Let’s set all this aside for a moment. The Constitution fixes the end of the terms of office of president and vice president for noon January 20. Mr. Cruz calls for a “10-day audit.” So between now (as I write, January 3) and January 20, here’s what would need to happen:

-A congressional statute (noted above), drafted, approved in each chamber of Congress, and signed by the President.

-An ensuing 10-day period of time, pursuant to that statute, to investigate allegations in some unspecified number of states.

-A report filed to “individual states” with time to “evaluate” the findings.

-A subsequent opportunity for states to “convene a special legislative session to certify a change in their vote, if needed.”

-An opportunity after that, which Mr. Cruz does not mention, for states to convene a new slate of electors to cast a new set of electoral votes, in the event that some new slate was certified as the true winner.

-A meeting of Congress to count the new set of electoral votes.

That cannot happen by January 20, Mr. Cruz’s statement asking for “[a] fair and credible audit-conducted expeditiously and completed well before January 20” notwithstanding. If that does not happen by January 20, then Ms. Pelosi, if she resigned from her office (and she might, as she might be able to run again quickly in an ensuing special election) would serve as “Acting President.”

Of course, no one is taking Mr. Cruz’s proposal seriously. Not even himself, as he writes, “We are not naïve. We fully expect most if not all Democrats, and perhaps more than a few Republicans, to vote otherwise.”

But it shows how poorly, even as a fundraising tool for Mr. Cruz’s 2024 presidential campaign, he has thought out his plan.

In 2005, 32 Democrats in Congress attempted overturn the results of the presidential election by objecting to Ohio's electoral votes

On the heels of news that some Republicans in Congress will object to counting electoral votes from certain states when Congress convenes to count electoral votes January 6, 2021, we have an opportunity to reflect on the last failed objection in Congress during the counting of electoral votes: that of Ohio’s electoral votes, disputed in 2005.

Senator Barbara Boxer continues to perpetuate a mythology about the moment that many are uncritically repeating: as she recently explained, “Our intent was not to overturn the election in any way. Our intent was to focus on voter suppression in Ohio.”

Congress could, of course, hold hearings about voter suppression in Ohio (which it did), or introduce or enact legislation pertaining to federal voting rights.

But in the joint session, an objection filed under the Electoral Count Act is specific. It is an objection to counting the electoral votes from that state.

George W. Bush received 286 electoral votes, including 20 from Ohio, a state he won by around 118,000 votes over John Kerry. A candidate needs a “majority of the whole number of electors appointed,” or 270 electoral votes, to win the presidency. If a candidate fails to get a majority, the election is thrown to the House of Representatives, where each state receives one vote, and it chooses among the top three vote-getters.

When Ms. Boxer and Representative Stephanie Tubbs Jones filed an objection, here’s what they formally provided, as printed in the Congressional Record:

We, a Member of the House of Representatives and a United States Senator, object to the counting of the electoral votes of the State of Ohio on the ground that they were not, under all of the known circumstances, regularly given.

If the objection were sustained, it would throw out Ohio’s 20 electoral votes—which represented the preferences of more than 2.8 million voters who supported Mr. Bush in the state.

Tossing out Ohio’s electoral votes would have dropped Mr. Bush to 266 electoral votes. In that scenario, it is likely that Mr. Bush would have failed to have a “majority of the whole number of electors appointed”—that is, the Ohio electors had been appointed, but their votes were deemed not “regularly given” and not counted. Mr. Bush would have been denied the presidency from the Electoral College. And the election would go to the House of Representatives to choose among Mr. Bush, Mr. Kerry, and John Edwards (who received one electoral vote for president, despite being Mr. Kerry’s vice presidential candidate).

The objection, then, was not an abstract proposition, a chance to discuss voter suppression, a two hour debate session. It was a formal request to throw out Ohio’s electoral votes.

One can read through the congressional record to find a report filed by Representative John Conyers of the House Judiciary Commtitee, including “ample grounds for challenging the electors from the State of Ohio.” A conclusion of the report opined, “We believe there are ample grounds for challenging the electors from Ohio as being unlawfully appointed,” including violations of state law, voting machine irregularities, and denial of access to election observers in the election process.

Many in Congress admitted that the debate would not change the outcome of the election. But admitting that it would not change the outcome of the election is different from still seeking to do so.

After two hours’ debate, each house voted on the question about whether to agree to the objection—that is, whether to object to counting the electoral votes from the state of Ohio. It failed in the House 267-31, and in the Senate 74-1.

But those 32 members of Congress (all Democrats) still voted to reject the counting of Ohio’s electoral votes. It might have been a doomed effort. But their votes were actually cast in an attempt to toss out the vote as reported by the state of Ohio. To say “our intent was not to overturn the election,” but to cast a vote that seeks to overturn the election, is nonsensical.

It’s also a reason I’m very down on some Republicans’ efforts to do so in 2021. Tossing out a state’s electoral votes is a big deal. It’s not merely some chance to talk about state law, election irregularities, or tech giants. It’s the request to throw out election results.

I don’t believe there were grounds to toss out Ohio’s votes in 2005, and I don’t believe there are grounds to toss out any of the certified electoral vote totals from states in 2021. I’m sure some favor the Democrats’ approach in 2005 and not the Republicans’ approach in 2021, or vice versa; some will make factual or legal distinctions between the two; some will find some whatabout-isms to cite. I’m not particularly interested in that. I think both efforts are embarrassing. But I want to provide the context about what formally occurred in 2005, rather than merely parroting the media lines of the politicians involved.

Should Kamala Harris participate in disputes over the counting of electoral votes in Congress?

Only twice since the Electoral Count Act of 1887 has Congress entertained formal objections to the counting of presidential electors. If a member of the House and a member of the Senate file a written objection to a state’s presidential electors, each house would separate and deliberate for two hours before voting on the objection.

Senator Kamala Harris of California is the vice president-elect. She can remain in the Senate until she resigns (presumably some time before January 20). The counting of electoral votes is January 6. Should she participate in any votes on any objections?

I say should because I think she can. It’s simply a political decision.

The Twelfth Amendment (and before that, Article II) puts the President of the Senate—the Vice President—in charge of opening electoral college certificates when the votes are counted in Congress. There’s obviously a conflict of interest where the vice president is a candidate—see Thomas Jefferson in 1800, for one, even before the Twelfth Amendment—but the Constitution firmly places this person in this position. Indeed, it’s perhaps made certain losses easier with a gracious loser—Richard Nixon in 1960 and Al Gore in 2000, to name two. Vice President Mike Pence will preside (in his absence, the responsibility would fall to Senator Chuck Grassley), and he, of course, has an interest in these objections, as many vice presidents have before him. But the vice president has played a fairly small role in recent years—Mr. Nixon’s request for unanimous consent to the counting of Democratic electors in Hawaii over a rival slate of Republican electors an outlier, but, one that was against his self-interest and one that expressly sought the consent of Congress.

In both objections lodged since 1887, however, we’ve seen Senators with a stake in the outcome potentially participate. One did participate, one deliberately chose not to.

First, in 1969, a faithless elector in North Carolina had voted for George Wallace instead of Richard Nixon. Members of Congress objected to determine whether to count the vote. Senator Edward Muskie was the losing vice presidential candidate, the running made of Hubert Humphrey. But it was Mr. Muskie, a member of the Senate, who actually signed the objection requesting that the vote for Mr. Wallace not be counted, on the grounds that it was not “regularly given.” In the end. Mr. Muskie voted on the losing side of the objection, as the objection failed in both chambers and the vote for Mr. Wallace was counted. (Incidentally, the losing presidential candidate, Hubert Humphrey, was the vice president and did not preside over the counting of electoral votes, as he was attending a funeral overseas.)

Second, in 2005, Senator Barbara Boxer and Representative Stephanie Tubbs Jones filed an objection that Ohio’s electoral votes were not regularly given. They would have refused to count the 20 electoral votes for George W. Bush and Dick Cheney. The losing candidate, Senator John Kerry, would have been the beneficiary of the objection. But, as reported in a statement printed in the Congressional Record, “I do not believe that there is sufficient evidence to support the objection and change the outcome of the election and I am not joining their protest of the Ohio electors.” It was printed, because Mr. Kerry did not attend the session and did not vote. (He opted to travel to the Middle East to meet with soldiers.) As Senator Mitch McConnell put it at the time, “Senator Kerry said that he would not participate in this petulant protest.”

One political principle, then, that unites these episodes is that Mr. Muskie voted in a way that would have been adverse to his interest as a candidate, and Mr. Kerry refused to participate in a process that would benefited his interests. (Of course, Mr. Kerry might have participated and voted “no” on the objection.) And it might be, then, that Ms. Harris should not participate in a vote that would be beneficial to her interests.

But, that’s for her to decide. This post is simply to note the political process as it’s played out previously. Again, Ms. Harris emphatically can vote on these objections on January 6. The Senate is closely divided on a partisan basis, but, like 2005’s vote that yielded a 74-1 rejection of the objection, I do not expect any votes to be particularly close.

But if she does participate, and if she votes in a way that benefits her candidacy, it would be a contemporary first under the Electoral Count Act.

New lawsuit perpetuates falsehood that Arizona legislature "endorsed" rival slate of electors

Earlier, I highlighted the erroneous assertion in some legal briefs that a state legislature has “endorsed” some rival slate of presidential electors. A new lawsuit from Arizona filed in Texas does the same, and more.

Here are some allegations from the complaint:

The Arizona Electors have cast Arizona’s electoral votes for President Donald J. Trump on December 14, 2020, at the Arizona State Capitol with the permission and endorsement of the Arizona Legislature, i.e., at the time, place, and manner required under Arizona state law and the Electoral Count Act.

As I explained earlier, “‘Permission’ to appear in the state capitol is no more an endorsement than allowing any group of tourists to step foot in the capitol and engage in some kind of activity.” It also is not clear that the legislature, as a legislature, endorsed such an activity.

The more deceptive claim is here:

On December 14, 2020, members of the Arizona Legislature passed a Joint Resolution in which they: (1) found that the 2020 General Election “was marred by irregularities so significant as to render it highly doubtful whether the certified result accurately represents the will of the voters;” (2) invoked the Arizona Legislature’s authority under the Electors Clause and 5 U.S.C. § 2 to declare the 2020 General Election a failed election and to directly appoint Arizona’s electors; (3) resolved that the Plaintiff Arizona Electors’ “11 electoral votes be accepted for … Donald J. Trump or to have all electoral votes nullified completely until a full forensic audit can be conducted;” and (4) further resolved “that the United States Congress is not to consider a slate of electors from the State of Arizona until the Legislature deems the election to be final and all irregularities resolved.[n. 11]

n.11: See Ex. A, “A Joint Resolution of the 54th Legislature, State of Arizona, To The 116th Congress, Office of the President of the Senate Presiding,” December 14, 2020 (“December 14, 2020 Joint Resolution”).

(Note that Exhibit A includes only 4 pages, not 5, which is the total number of original signatories. You can see that Twitter thread here. It appears the plaintiffs may have accidentally included only the 4 images in the first Twitter post without scrolling down to the second post.)

“Members” of the legislature are distinct from the legislature. They cannot “pass” a “Joint Resolution” under state law unless they go through the lawmaking process. It is not a “Joint Resolution” under any recognized authority of the state legislature, except that these lawmakers want it to be so.

A review of the signatories shows 17 members of the 60-member house, and 5 members of the 30-member senate, which means that it fails majority requirements in both chambers (of course, the presence of a quorum may mean fewer than all members present).

It’s also signed by 8 members-elect, who, of course, are not a part of the legislature right now and cannot engage in the lawmaking function.

And the “joint resolution” has no bill number and is not enrolled in any journal. No roll call was taken. No legislative session was established by any entity.

These members of the legislature are so strongly advancing the independent state legislature doctrine while simultaneously undermining legislative claims by asserting legislative power in contexts where the legislature is not acting.

UPDATE January 1, 2021: A similar falsehood was included regarding Michigan’s electors in a motion to intervene in Gohmert v. Pence. Here are the allegations:

Intervenors include portions of the slate of Republican Presidential Electors for the State of Michigan. Intervenors have cast their Presidential electoral votes for the State of Michigan for President Donald J. Trump on December 14, 2020, at the Michigan State Capitol with the permission and endorsement of the Michigan Legislature, i.e., at the time, place, and manner required under Michigan state law and the Electoral Count Act.
...
On December 14, 2020, pursuant to the requirements of applicable state laws and the Electoral Count Act, Intervenors, with the knowledge and permission of the Republican-majority Michigan Legislature, convened at the Michigan State Capitol, and cast Michigan’s electoral votes for President Donald J. Trump and Vice President Michael R. Pence.

"Texas v. Pennsylvania Would Have Upended the Electoral College"

Over at Law and Liberty, I have this post, “Texas v. Pennsylvania Would Have Upended the Electoral College.” It begins:

The Electoral College is a designedly decentralized process for the selection of the President of the United States. Each State may choose its presidential electors in the manner that the legislature deems appropriate.

The State of Texas, in Texas v. Pennsylvania, sought to upend this system in advance of one end: get the Supreme Court to do something, anything, to prevent President-Elect Joe Biden from taking office.

Despite what Court briefs say, no state legislature has appointed--or "endorsed"--a rival slate of presidential electors

Briefs before the Supreme Court are making deceptive (at best) claims about what state legislatures have done this December when it comes to presidential elections and the selection of presidential electors.

Consider this statement from a brief in King v. Whitmer:

As a result of the foregoing, there are now competing slates of electors from the four states at issue [Arizona, Michigan, Pennsylvania, and Wisconsin] in the four cases mentioned above, (as well from Nevada, New Mexico, and Pennsylvania).

These four slates of electors have received the endorsement of the legislatures in each of these States, as reflected in permission for them to cast (or attempt to cast) their electoral votes, as an electoral body, for President Donald J. Trump in the respective State Houses at the time and place as set forth under applicable State law, the Electoral Count Act, and the authority delegated under the U.S. Constitution’s Electors Clause. U.S. Const. Art II, § 1, cl. 2.

Or these statements from a brief in In re Pearson:

While the Georgia Legislature did not go so far as to formally withdraw or nullify this delegation of authority on December 14, 2020, its endorsement of the contingent slate of Republican electors preserved its right to do so at the time and in the manner of its choosing.

...

Any contention that the federal courts lack subject matter jurisdiction over these controversies is likewise without merit. The events of December 14, 2014 giving rise to competing slates of electors for the State of Georgia – one endorsed by the State Legislature and one by the Respondent State executives – creates a new and very live “case or controversy” under Article III of the U.S. Constitution.

The “legislature” is the elected lawmaking body in a state, but that lawmaking body has some rules. To act as a legislature, it has to be in session. It has to have a quorum present. It has to hold a vote. It typically requires a public report in a journal, like the federal Constitution requires. These aren’t controversial propositions for even most the ardent defender of a state legislature’s power under the Presidential Electors Clause.

But no legislature has done any such thing. No legislature has appointed a slate of electors. No legislature has “endorsed” the actions of a slate of electors that attempted to vote contrary to the electors certified from the popular election in the state.

“Permission” to appear in the state capitol is no more an endorsement than allowing any group of tourists to step foot in the capitol and engage in some kind of activity.

While some individuals purporting to be groups of Republican electors cast votes in their respective states recently—arguing they were a “rival” slate opposed to the winning Democratic slate—none of these slates were appointed by the legislature. All acted on their own. While individual legislators may have approved of their decisions, no legislature did so.

In contrast, one can go back to 2000 and the special session of the Florida legislature that met to consider choosing a slate of electors as Bush v. Gore languished in the courts. One can open the House journal to find the vote of the Florida House approving a slate of electors. Yet it still wasn’t an appointment of the legislature, as the Senate never acted on it.

These statements in the briefs before the Supreme Court are designed to sow confusion and uncertainty, to act as if there are questions of the legitimacy of more than one slate of electors when, in reality, there is only one slate in each of the fifty states that has any legally-recognized authority.

Wisconsin district court incorrectly describes scope of the Presidential Electors Clause

A federal judge in Trump v. Wisconsin Election Commission recently rejected the President Donald Trump’s attempt to declare Wisconsin’s 2020 presidential unconstitutional. While the court got many things right, I want to focus on one important legal error in Part II.A of the opinion—the scope of the Presidential Electors Clause, and, specifically, the scope of the state legislature’s power to direct the “manner” of appointing electors.

It’s worth noting at the outset that the district court includes in the alternative Part II.B, if the scope of the Presidential Electors Clause is broader than the court describes. But I want to highlight why Part II.A is incorrect.

Here’s the crucial passages from the court on this issue (all quotations include some light editing):

Plaintiff contends defendants have violated the Electors Clause by failing to appoint the state’s presidential electors in the “Manner” directed by the Wisconsin Legislature. By this, plaintiff means that he has raised issues with the WEC’s guidance on three issues related to the administration of the election. This argument confuses and conflates the “Manner” of appointing presidential electors—popular election—with underlying rules of election administration. As used in the Electors Clause, the word “Manner” refers to the “[f]orm” or “method” of selection of the Presidential Electors. Chiafalo, 140 S. Ct. at 2330 (Thomas, J., concurring) (citations omitted). It “requires state legislatures merely to set the approach for selecting Presidential electors.” Id. Put another way, it refers simply to “the mode of appointing electors—consistent with the plain meaning of the term.” Id.; see also McPherson v. Blacker (1892) (“It has been said that the word ‘appoint’ is not the most appropriate word to describe the result of a popular election. Perhaps not; but it is sufficiently comprehensive to cover that mode…”).

The approach, form, method, or mode the Wisconsin Legislature has set for appointing Presidential electors is by “general ballot at the general election.” Wis. Stat. §8.25(1). There is no dispute that this is precisely how Wisconsin election officials, including all the defendants, determined the appointment of Wisconsin’s Presidential Electors in the latest election. They used “general ballot[s] at the general election for choosing the president and vice president of the United States” and treated a “vote for the president and vice president nominations of any party is a vote for the electors of the nominees.” Absent proof that defendants failed to follow this “Manner” of determining the state’s Presidential Electors, plaintiff has not and cannot show a violation of the Electors Clause.

Plaintiff’s complaints about the WEC’s guidance on indefinitely confined voters, the use of absentee ballot drop boxes, and corrections to witness addresses accompanying absentee ballots are not challenges to the “Manner” of Wisconsin’s appointment of Presidential Electors; they are disagreements over election administration. Indeed, the existence of these (or other) disagreements in the implementation of a large election is hardly surprising, especially one conducted statewide and involving more than 3.2 million votes. But issues of mere administration of a general election do not mean there has not been a “general ballot” at a “general election.” Plaintiff’s conflation of these potential nonconformities with Constitutional violations is contrary to the plain meaning of the Electors Clause. If plaintiff’s reading of “Manner” was correct, any disappointed loser in a Presidential election, able to hire a team of clever lawyers, could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every Presidential election into a federal court lawsuit over the Electors Clause. Such an expansive reading of “Manner” is thus contrary both to the plain meaning of the Constitutional text and common sense.

Oddly, the Court relies on Justice Clarence Thomas’s concurring opinion in Chiafalo v. Washington. And this is the part of the concurring opinion where Justice Neil Gorsuch, the only other justice who joined part of Justice Thomas’s approach, did not join.

Here’s what Justice Elena Kagan (for eight justices) had to say about the clause:

Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint. As noted earlier, each State may appoint electors “in such Manner as the Legislature thereof may direct.” Art. II, § 1, cl. 2. This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector. McPherson v. Blacker (1892). And the power to appoint an elector (in any manner) includes power to condition his appointment—that is, to say what the elector must do for the appointment to take effect. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period.

Right off the top, the majority in Chiafalo has a much more expansive view of the “manner” power than Justice Thomas’s view—and the Wisconsin district court. It is “far-reaching,” it is "the broadest power,” it “includes the power to condition” an elector’s appointment. It is more, in other words, than the “form” and “method.”

But it’s also worth working backwards for a moment. The court describes these things as “issues of mere administration of a general election.” Where is the State authority—legislative or otherwise—to develop issues of “mere administration” of a federal election?

The constitutional allocation of power over elections

Under the majority view—the view of, among others, Justice Joseph Story, and of a majority of the Court in U.S. Term Limits v. Thornton and Chiafalo—the Constitution sets forth a framework to empower States to regulate federal elections. Before the existence of the Constitution, there was no power anywhere to regulate federal elections because, well, there was no federal government. But the creation of federal elected offices under the Constitution meant that the allocation of authority had to lodge somewhere. The Constitution parcels how that power for both congressional and presidential elections. It sets out rules about who is qualified to be elected to those offices; who is eligible to vote for those offices; and who gets to regulate the times, the places, and the manner of holding those elections.

Under this majority view, that is the exclusive source of the authority over the election of all federal offices—some provision of the federal Constitution.

Where, then, does the power over “issues of mere administration of a general [federal] election” come from?

If it does not come from the Constitution, we’ve already reached a problem. The minority position—the losing position that Justice Thomas articulated in both Term Limits and Chiafalo—is that such power is inherent in the States as understood through the Tenth Amendment.

One could, then, accept that “manner” has a very narrow definition and that residual authority over elections is inherent in the States under the Tenth Amendment. But that’s been the position rejected by the Supreme Court and, I think, is not the best way to think about how the Constitution structures the allocation of power over federal elections.

The intratextual use of the word “manner”

There’s another intratextual problem, too. The Constitution grants State legislatures the power to direct the “manner” of appointing electors in the Presidential Electors Clause, and it also grants them the power over the “manner” of holding congressional elections in the Elections Clause. There is, as one commenter put it, “little reason” to believe that the scope of power is substantially different. Professor Michael Morley has likewise recognized that these two clauses have been construed “in pari materia.”

One of the most famous articulations of the scope of the “manner” of holding congressional elections came from James Madison during the ratification debates:

Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, should all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. and might materially affect the appointments.

The Supreme Court in Smiley v. Holm adopted a similarly broad understanding:

[T]hese comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved

In short, the more widely-recognized scope of the Elections Clause extends quite broadly. Indeed, it extends broadly precisely because Congress must have the power to supersede state laws in this area—a narrow conception of “manner” would not work. Note how Justice Antonin Scalia described the scope of the power in Arizona v. Inter Tribal Council of Arizona:

The Clause’s substantive scope is broad. “Times, Places, and Manner,” we have written, are “comprehensive words,” which “embrace authority to provide a complete code for congressional elections,” including, as relevant here and as petitioners do not contest, regulations relating to “registration.” Smiley v. Holm (1932) ; see also Roudebush v. Hartke (1972) (recounts); United States v. Classic (1941) (primaries). In practice, the Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to preempt state legislative choices.” Foster v. Love (1997) (citation omitted). The power of Congress over the “Times, Places and Manner” of congressional elections “is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.” Ex parte Siebold (1880).

A broad conception of “manner” does not risk indefinite litigation after each election

The district court creates a worrisome concern of the Presidential Electors Clause included a broad scope of the power to define the “manner” of appointing electors: “[A]ny disappointed loser in a Presidential election, able to hire a team of clever lawyers, could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every Presidential election into a federal court lawsuit over the Electors Clause.”

That’s simply not the case. The district court conflates the scope of the State legislature’s authority under the Presidential Electors Clause (which is broad) with those circumstances in which deviations from it might rise to the level of running afoul of the so-called “independent state legislature doctrine.” That is, part of Mr. Trump’s argument was that the administration of Wisconsin rules was inconsistent with the legislative scheme in such a way as to call into doubt whether the “legislature” of the state actually created the rules.

Never mind that Part II.B of the opinion notes that the election did conform with legislative rules—albeit some administrative delegations that allowed the Wisconsin Election Commission to apply the legislature’s statutes.

But it’s also worth emphasizing that even if a party sues, that party may still not win. And that’s certainly the case with the independent state legislature doctrine. Consider how Chief Justice William Rehnquist articulated how federal courts would review a state practice in Bush v. Gore:

Isolated sections of the code may well admit of more than one interpretation, but the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies.
…
What we would do in the present case is precisely parallel [to other cases]: hold that the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II.
…
[The Florida Supreme Court] significantly departed from the statutory framework.

While the independent state legislature doctrine remains controversial—particularly judicial application of it—and while its contours remain underdefined, not every deviation will yield a successful claim. True, a losing candidate could “flag” any deviation it wanted in a federal court. But surely, most of the time, those claims would fail.

If anything, it’s a reason to construe the independent state legislature doctrine narrowly—not to construe the “manner” provision of the Electors Clause narrowly.

*

Again, I agree with the underlying result that this case—effectively a request to declare the election unconstitutional and “remand” to the Wisconsin legislature (which is a nonsensical remedy). But this one statement of law, I think, is incorrect, and I hope this post provides the context as to why. If the Seventh Circuit chooses to hear the appeal, it is my hope that it would clarify at least this portion of the opinion.

UPDATE: A district court in Georgia used the same device here, relying on Justice Thomas’s opinion to describe the scope of the “manner” to direct the appointment of presidential electors.