Nick has posted Larry Lessig’s Slate piece arguing that it’s necessary to put the brakes on ECA reform because of the risk that the Supreme Court will embrace the so-called “independent state legislature doctrine” to authorize state legislatures to appoint alternative slates of presidential electors in defiance of the previously authorized popular vote in the states as the method of appointing electors. I certainly agree that it’s necessary for well-crafted ECA reform to be predicated on an accurate understanding of Article II. What I wrote Monday in my post ECA reform must be bipartisan addresses this important point, and as long as the revised ECA handles it correctly this issue should not derail the ECA reform effort. Because the portion of the Monday’s post that specifically addressed this point was at the end, and thus easily missed, I will elevate it here:
One more key point along these lines: there is a particular fear that in 2024 state legislatures may attempt, after the popular vote has been held, to reassert a power to appoint presidential electors directly regardless of the result of an accurate count of the popular vote. State legislatures, however, lack this power for this reason: Article II of the Constitution authorizes Congress to “determine the time of choosing the electors.” Exercising that power, Congress has designated the first Tuesday after the first Monday in November as when the appointment of each state’s electors must occur, whatever the means that a state has chosen to appoint its electors. Thus, when a state has decided to hold a popular vote to appoint electors, that popular vote must occur on the designated day, which we colloquially refer to as Election Day. (Yes, there’s now early voting, and absentee voting, and all the ballots must be counted, but as a matter of law the appointment of the electors occurs as a result of the ballots cast in the popular-vote election held on the congressionally required date.)
Once that popular vote has been held for the purpose of appointing electors, state legislatures are constitutionally powerless to choose a different “manner” of appointing electors for that year’s presidential election. The appointment already has occurred by the popular-vote ballots having been cast (although the “ascertainment” of that already-occurred appointment, to use the language of the Electoral Count Act, is still to be completed through the counting, and potentially recounting, of the ballots). To be sure, if a state really has “failed” to conduct an election on the congressionally designated day (because of an earthquake or some other major disaster), the Congress allows a state’s legislature to choose a new method of appointing electors on a subsequent day. But when the popular-vote election has been held, and the ballots cast are capable of being counted, it is untenable for any state legislature to contend that the election has “failed” as a prerequisite for permitting the legislature to choose a new method of appointing that year’s electors. (A revised ECA usefully could tighten up the existing statutory language relating to the very limited circumstances in which a truly “failed” election exists.)
One key goal of a revised ECA, in my judgment, would be to make clear that if a state legislature attempted to send Congress a rival submission of electoral votes (in opposition to the electoral votes cast by electors appointed pursuant to the final count of popular-vote ballots) based on the state legislature’s claim to appoint electors directly after the popular-vote appointment has occurred, then Congress is constitutionally obligated to count the electoral votes based on the popular vote, and not the rival submission of electoral votes based on the too-late assertion by the state legislature of a power to appoint electors directly. Right now, the existing ECA is insufficiently clear on this point, and this ambiguity is especially dangerous. Properly understood, the so-called “safe harbor” provision of the ECA already provides for this, because Congress has promised to consider “conclusive” any adjudication that determines the final tally of the popular vote pursuant to state laws existing prior to the appointment of electors by means of the popular vote on Election Day. But this particular significance of the safe-harbor provision is not widely understood, and clarification of the ECA on this point is crucial.