The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
One of the most disconcerting developments of the 2000 presidential contest in Florida was the prospect that the Republican state legislature might attempt to settle the dispute by selecting its own slate of presidential electors. Some supporters of President Donald Trump have suggested that a similar call is in the playbook this time. That would be a huge mistake, and elected leaders in Republican states should make clear that they would not support such a plan.
Radio host Mark Levin has urged state legislatures to "do your constitutional duty" and appoint a slate of Republican presidential electors. Donald Trump Jr. has endorsed that plan, as have some Republican politicians. The Republican leader of the Pennsylvania senate has dismissed the possibility. As Joe Biden's apparent Electoral College lead grows, such state interventions become more futile and thus hopefully less likely.
We have all become more familiar with the unusual features of the Electoral College. The divergence between the electoral vote formula in the Constitution and the national popular vote has received the lion's share of the attention recently. As partisans have maneuvered over the rules that would govern voting during a pandemic, the highly decentralized nature of our presidential election system has been made obvious. But some aspects of the Electoral College remain obscure, and the role of the state legislatures in the process is among them.
In the years after the American Revolution there was little agreement in the states of the Union about how democratic elections should be conducted and government officials should be chosen. The would-be constitutional framers who met in Philadelphia in the summer of 1787 knew that state politicians, and state electorates, were jealous of their own authority to set the rules of the political game. As a result, the Constitution does not attempt to create a system of federal election rules nor does it entrust the entire power to write such rules to federal officials. The "Times, Places, and Manner" of federal elections are to be set "in each State by the Legislature thereof." State control is the default setting, unless and until Congress takes control through duly enacted statutes.
The system for choosing the presidential electors who will actually cast the official ballots for president in December is even more firmly entrusted to the states. The Constitution directs that each state shall appoint presidential electors "in such Manner as the Legislature thereof may direct." Early in the nation's history, state legislatures often simply appointed the presidential electors themselves, just as they appointed the U.S. senator before the adoption of the Seventeenth Amendment. It did not take long for a more democratic sensibility to take hold. State legislatures established procedures for elections in which the voters could choose the presidential electors, and thus effectively choose the president since the candidates for presidential elector in turn pledged themselves to vote for a specific candidate for president.
Presidential electors have overwhelmingly been chosen directly by voters for most of American history. By 1796, the first presidential election without George Washington as a candidate, less than half the states were still using direct legislative selection of presidential electors. The last state legislature to choose electors was Colorado in 1876, and that was only because Colorado was admitted into the Union too late in the presidential election cycle to organize an election.
The history of state legislatures intervening to displace the voters in order to choose presidential electors has not been a good one. Some members of the Federalist Party simply did not trust elections and generally believed that legislatures should make such important decisions. But sometimes partisans were just looking for an angle to secure victory for their side. In 1800, Alexander Hamilton tried to persuade the New York Federalists to scuttle the presidential election so that Thomas Jefferson would not win the state's slate of electors. In 1812, the New Jersey legislature did cancel the presidential election, days before it was to take place, in order to appoint a slate of Federalist presidential electors. The public outcry generated by such episodes nearly spurred Congress to amend the Constitution to cut state legislatures out of the process.
Americans did not like the idea of state legislatures pushing aside voters in the early republic, and they would not like it today. Few things would be more destabilizing to the American political system than for legislatures to try to change the rules of the electoral game after the fact and announce that legally cast ballots will no longer be counted. The Constitution arguably gives state legislatures the power to appoint presidential electors right up until the day the electors meet to cast their ballots, even if legislatures had previously put some other system in place for selecting electors. But few constitutional norms are as strongly established as the one that holds that state legislatures should not take such an extraordinary step except under the most extreme of circumstances, as in situations like that of the newly-admitted Colorado.
For a legislature to attempt to settle an ongoing election dispute by imposing its own partisan solution would not only undermine the legitimacy of the particular presidential candidate the legislature was trying to help but it would be subversive of American faith in democratic elections generally. The political backlash could be expected to be severe.
Partisans can be expected to fight hard for their favored candidates, but at the end of the day the stability of a democracy depends on the willingness of all sides to live by the results of the election. We might not always be happy with the results of the election, or even with the process by which the election was run, but we live with such disappointments and imperfections and come back to campaign another day. State officials should make clear that their legislatures will not be partisan tools for weakening democracy.