by Robert Romano
Legislation offered by Senators Joe Manchin (D-W.Va.) and Susan Collins (R-Maine) would repeal Sections 1 and 2 of the 1887 Electoral Count Act, and replace the appointment of electors by state legislatures in the event a state fails to make a choice in that election under current federal law to “the executive of each State”.
3 U.S.C. Section 2 currently states, “Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.”
But under the Manchin-Collins bill, that section of federal law would be gone, which asserts the state legislature’s primacy in selecting the President and mirrors Article II, Section 1 of the Constitution’s second clause “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors”.
Replacing that would be a procedure that completely removes that power from state legislatures and instead recognizes the power of state executives: “the executive of each State shall issue a certificate of ascertainment of appointment of electors”.
In the constitutional scheme, under Article II, Section 1 of the Constitution, the Manchin-Collins is at odds with the text of the Constitution.
The Constitution says states appoint electors “in such manner as the Legislature thereof may direct” and the Manchin-Collins bill says it is when “the executive of each state” issues the certificate appointing the electors. It’s a blatant contradiction.
And that’s the point. The intent of the law is to avert challenges based on the so-called “independent state legislature” theory.
Moreover, it is at odds with history and precedent for what these provisions meant under federal law prior to the popular election of presidents when state legislatures indeed would vote for the electors to the Electoral College.
For example, in the first presidential election of 1788, four states, Connecticut, Georgia, New Jersey and South Carolina chose the electors by their state legislatures, and six states, Delaware, Maryland, New Hampshire, Pennsylvania, Massachusetts and Virginia, did it by popular votes. There is no question every state did so in accordance with its own laws.
As an aside, New York, North Carolina and Rhode Island had not yet adopted the Constitution.
What the state legislatures didn’t do was pass a law naming their electors, and submit it to their governors to sign or for approval. They just chose the electors. That was it.
Meaning under the default situation under the Constitution, absent adoption of any other laws for example providing for popular votes to some degree at the state level, it was the state legislatures who chose the electors for president. The state’s governor or secretary of state had zero role.
Zero.
And all you need to know that is to simply read the Constitution, which never anticipated that “the executive of each State” would be appointing the electors to the Electoral College.
The Constitution would have never been adopted had that been the case. It would have never been agreed to at the Constitutional Convention. It was a union of states who believed in democratic rule, not consolidating the most important decision – choosing the president – to one person.
And yet, that’s the new scheme Congress would agree to. Whoever the “the executive of each State” says are the electors are the electors, apparently even if the state legislature disagrees.
That is, what if the governor or secretary of state certifies one winner, and the state legislature chooses another? What then?
In the event a popular election were ever overturned at the state level by a court, it would invariably, under the Constitution and current law, it would still fall to the state legislature to choose the electors instead as a failsafe.
Both the Constitution and federal law grant the tie to the runner, in this case, the state legislatures. Why get rid of that?
And that’s the system we have today. And it works just fine. As it turns out, states including their legislatures have already adopted laws and provisions for Secretaries of State to certify the results of elections, including the presidential election, which are done by popular votes in all 50 states, with 48 winner take all contests and 2 with winner take all Congressional Districts in Maine and Nebraska.
If state legislatures don’t like the state law that governs the choosing of their electors, they can change their states’ laws. Congress doesn’t need to do anything. If it isn’t broke, don’t fix it.
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Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
Photo “Joe Manchin” by Senator Joe Manchin III. Photo “Susan Collins” by U.S. Senator Susan Collins. Background Photo “U.S. Capitol” by bones64.
