Sunday, December 13, 2020
The Supreme Court on Friday dismissed Texas's suit against Georgia, Pennsylvania, Michigan, and Wisconsin alleging violations of the Constitution's Electors Clause. The ruling was based on Texas's lack of standing--that Texas didn't allege a sufficiently specific and personal harm, caused by the defendants' actions and redressable by the Court, to punch its ticket to the Supreme Court. Importantly, the ruling did not touch the merits, the Electors Clause question.
The ruling thus left open a possibility that President Trump or Trump voters (or somebody else with a stronger standing case than Texas) might file similar cases against the same states, also alleging violations of the Electors Clause. (Indeed, a federal court in Wisconsin on Saturday rejected just such a case; more on that below.) So I thought it might be worth a beat to examine this claim.
President Trump and supporters argue that Georgia, Pennsylvania, Michigan, and Wisconsin violated the Constitution's Electors Clause by using election rules that weren't specifically sanctioned by the state legislatures in those states. The Electors Clause, in Article II, Section 1, specifies how states appoint electors to the electoral college; it says, "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . ." President Trump and his supporters focus on the phrase "in such Manner as the Legislature thereof may direct," and argue that a state legislature--and only a state legislature--has authority to direct how the state appoints electors.
That claim has some support on the Supreme Court. In other election cases this fall, Justices Thomas, Alito, and Gorsuch seemed to endorse it. For example, Justice Alito (joined by Justices Thomas and Gorsuch) wrote in Pennsylvania v. Boockvar that the "question has national importance, and there is a strong likelihood that the State Supreme Court decision [extending the deadline for mail-in votes] violates the Federal Constitution."
The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.
UPDATE: Justice Alito's opinion in Boockvar was carefully limited to the situation where a state supreme court "override[s] the rules adopted by the legislature." His opinion doesn't extend to situations where a state supreme court merely interprets the rules of the legislature, or where another body acts pursuant to legislative delegation. Justice Alito's opinion, by its own terms, therefore doesn't endorse the strongest version of a legislature-only rule (say, invalidating a state court ruling that merely interprets state law), but instead only a weaker version, where a state court outright "override[s] the rules adopted by the legislature." Many thanks to Professor Bruce Ledewitz, Duquesne, for pointing this out.
(Similarly, in an earlier, unrelated case, Arizona State Legislature v. Arizona Independent Redistricting Commission, Chief Justice Roberts argued in dissent that a similar constitutional provision, the Elections Clause (which gives "the Legislature" of each state the power to regulate "[t]he Times, Places and Manner of holding Elections") does not allow state voters to vest redistricting power in an independent commission. Chief Justice Roberts's position in that case doesn't necessarily mean that he'd also endorse a "legislature-only" reading of the Electors Clause. But it does suggest that he'd at least be open to it.)
Under that "legislature-only" reading of the Electors Clause, President Trump and his supporters argue that Georgia, Pennsylvania, Michigan, and Wisconsin violated the Clause, because executive agencies or courts in those states adopted voting rules that weren't specifically enacted by the legislatures in those states. For example, in Boockvar, the Pennsylvania Supreme Court ordered that the state accept mail-in ballots up to three days after election day, even though state law set an election-day deadline. The court held that the extension was required to comply with the Free and Equal Elections Clause of the state constitution. In other states, executive officials or judges issued similar orders in order to accommodate voters in an age of Covid-19. President Trump and his supporters claimed that these accommodations violated the Electors Clause, because they weren't specifically authorized by the state legislatures.
On the other side, the states argue that the Electors Clause authorizes only state legislatures only to direct the "Manner" of appointing electors--and that the state legislatures did this when they specified under state law that each state's electors would go to the popular-vote winner in the state. The states say that the "Manner" of appointing electors only extends that far--to the specification how a state would appoint its electors (by popular vote, for example)--and not to every jot and tittle of state election administration. Read more broadly, they say that the Clause would allow anyone to successfully challenge in federal court any aspect of the way a state ran a presidential election, so long as it wasn't specifically adopted by the state's legislature--a clearly absurd result.
Moreover, they say that a state "legislative" act isn't just an act of the "legislature," but rather an act of the state's lawmaking apparatus. This includes the governor's signature, the executive's enforcement, and the state courts' review. (That's what the majority said about the Elections Clause in Arizona State Legislature.)
Finally, even if the Electors Clause means that the legislature--and the legislature alone--can enact the election rules for presidential elections, the states say that they complied, at least with regard to executive enforcement of election law. That's because the legislature delegated authority to enforce the election law to executive agencies.
A federal court in Wisconsin put these arguments to the test just yesterday, in Trump v. Wisconsin Elections Commission . . . and ruled flatly against the President. The court held that the Wisconsin legislature did direct the manner of appointing electors--by specifying that they'd be appointed according to the popular vote in the state. It held that the "Manner" of appointment didn't extend to particular voting rules and the administration of the election: "[The President's] argument confuses and conflates the 'Manner' of appointing presidential electors--popular election--with underlying rules of election administration." And it held that even if the "Manner" of appointing electors includes election administration, Wisconsin satisfied the Clause, because the state legislature delegated authority to the Wisconsin Elections Commission to make certain rules on the administration of an election.
Stepping back, this is why Trump opponents have argued that Texas's lawsuit, if successful, would have unduly encroached on state sovereignty: because it would've meant that federal courts would've second-guessed every aspect of a state's lawmaking and administration of an election (the legislature's act, the executive's enforcement, and the state courts' say-so as to how it must operate under the state constitution). The Trump position would allow federal courts a free license to invalidate any aspect of election administration that the state legislature did not specifically enact--no matter how much the legislative act violated state law or the state constitution.
Still, if the question gets to the Supreme Court--a big "if," given all the other problems with these lawsuits--at least three justices seem ready to rule for a "legislature-only" interpretation of the Electors Clause. That position, if endorsed by five justices, could favor President Trump in one or more of these states, where executive officers or judges adopted election rules without specific authorization (as in Wisconsin) from the legislature.