Friday, November 13, 2020

State Legislatures and Presidential Electors

Gerard N. Magliocca

There is a notion floating around in some media reports that state legislatures in the closest states of the presidential elections have the power to, in effect, overturn the will of the people in those states or decide that the reported results were somehow fraudulent and should not be recognized. This is incorrect.

First, there is language in Chiafalo v. Washington that casts doubt upon the constitutionality of such an act. In that case about state authority over presidential electors, the Court stated at a couple of points that the idea of state legislatures naming electors directly was an obsolete relic.

Second, Chiafalo relied heavily on longstanding practice as a gloss on a state's power to appoint electors. And there is no precedent for a state legislature to appoint electors after a state's presidential election was held. The examples where legislatures directly appointed electors (early in our history) all occurred in the absence of a presidential election in that state. Even in the disputed elections of 1876 and 2000, no state legislature countermanded the state's election authorities and ordered a different result. 

Third, even if you think that the state legislative does have that sort of retrospective power, the Court in Chiafalo made clear that a state's authority to name presidential electors is subject to review by the courts. Thus, an equal protection claim arguing that a state legislature appointment decision lacked a rational basis would be justiciable. The legislature would then have to produce actual evidence of irregularities or fraud to support its decision.


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