One point about Judge Luttig’s new CNN piece

Nothing in recent months has altered my assessment of the risk of an attempt to subvert the outcome of the 2024 presidential election, and therefore I applaud Judge Luttig for vociferously sounding the alarm in his new CNN essay. But there is one aspect of his analysis that I think is incorrect, and I believe correcting this mistake is important for understanding how Congress should amend the Electoral Count Act to prevent the kind of electoral subversion that he and I (among many others) are striving to avoid.

Judge Luttig spends much of his new essay discussing the so-called “independent state legislature” doctrine, which finds expression in Chief Justice Rehnquist’s concurrence in Bush v. Gore (among other places). This blog post is not the place to discuss the merits or flaws, or even the potential scope, of the doctrine. Rather, the key point here is to recognize that, even if the doctrine is robustly embraced in the form that Chief Justice Rehnquist articulated in his Bush v. Gore concurrence, it would not empower state legislatures to engage in the kind of post-hoc electoral subversion that Judge Luttig envisions.

Quite apart from the contours of the “independent state legislature” doctrine (which constrains the power of state courts to deviate from what state legislatures have enacted), Article II of the federal Constitution undoubtedly grants state legislatures the power to determine the “manner” of appointing the state’s electors. But also quite apart from the contours of the “independent state legislature” doctrine, Article II also empowers Congress to set the “time” for “choosing” the electors. Once a state’s electors have been chosen according to the “manner” previously established by the state legislature (at the “time” specified by Congress), the state legislature cannot decide to adopt a new “manner” of appointing the state’s electors for that year’s presidential election.

Thus, a properly revised Electoral Count Act can insist on counting the electoral votes cast by electors appointed pursuant to the manner adopted by the state legislature in advance of the time specified by Congress (what we commonly call “Election Day” in November). Any subsequent attempt by a state legislature to undo the appointment of electors pursuant to that previously specified manner is null and void. In this regard, as part of revising the Electoral Count Act, it is important to clarify 3 USC 2 to make clear, at the very least, that a state has not “failed” to choose electors, thus authorizing a state legislature to determine a new manner of appointing the state’s electors, just because the state legislature disagrees with the outcome of the process that the legislature previously established for casting and counting ballots in the popular vote that the legislature itself decided was to be the state’s method of appointment for that year’s election. As long as the state legislature’s own established procedures for counting the popular vote–including any recounts or judicial procedures regarding the counting of ballots that the legislature itself enacted–are being utilized, then there is no “failed” election that would justify the state legislature’s subsequent intervention.

The state legislature can change the manner of appointing the state’s electors for the next quadrennial presidential election, but once Election Day in November 2024 has passed, then the state’s electors already have been appointed for that year’s election pursuant to the legislature’s previously selected manner. Thus, no rival submission of electoral voters, purportedly cast by newly appointed electors pursuant to the state legislature’s desire to change the manner of appointment after the appointment already occurred, should be considered cognizable in the joint session of Congress held pursuant to the Twelfth Amendment to receive and count the electoral votes from the states. Only the electoral votes cast by electors appointed pursuant to the manner specified before Election Day in November should be considered cognizable in the Twelfth Amendment joint session.

Judge Luttig writes: “Trump and the Republicans can only be stopped from stealing the 2024 election at this point if the Supreme Court rejects the independent state legislature doctrine.” This is incorrect for the reasons just explained. Even if the Supreme Court recognizes the authority of state legislatures to set the rules for appointing electors, and even if the Supreme Court says that the state legislature’s authority in this regard means that state courts cannot undo the choices that the state legislatures have made, that Supreme Court determination would not negate the key point that the state legislature’s authority in this regard is limited to before the electors are appointed. State legislatures do not, any more than state courts, have the power to alter the rules for appointing electors after the congressional designated “time” has expired.

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