The Supreme Court is likely to grant a cert. petition, possibly the pending one from North Carolina, on what’s known as the “independent state legislature” issue. The Constitution’s Elections Clause gives state “legislatures” power to regulate national elections; the issue is whether in exercising that power, state legislatures are freed from the constraints that otherwise apply to their powers, such as those in the state constitution. The question is not just whether the Court decides to recognize such a doctrine, but what the scope of any such doctrine might be. The implications of such a doctrine are potentially vast, depending on what its scope might be. Because the Electors Clause in the Constitution also gives state “legislatures” the power to determine the “manner” of presidential elections, this issue also has potential implications for presidential elections, in addition to those for the House and Senate.
But there is one implication concerning presidential elections any such doctrine would not have. Because I have seen a good deal of confusion about this in commentary, I wanted to clarify this point. Even if the Court endorses the doctrine, it would not mean state legislatures could choose to ignore the popular vote in their state and appoint presidential electors themselves. The Constitution in Art. II expressly gives Congress the power to determine the time at which electors must be chosen. Since the Presidential Election Day Act of 1845, Congress has set a nationally uniform day for the presidential election. If a state chooses to use an election for choosing the presidential electors, that election must be on the day Congress has proscribed [Update: if a legislature were to revert to the early 19th century practice of appointing the electors itself, a highly unlikely prospect, the legislature would have to do this on election day as well]. Electors cannot be chosen after that day. Of course, it might take time to determine who the voters have in fact chosen on Election Day, given the need to tabulate the votes, conduct any possible recounts, and resolve any litigation over the outcome that might arise. But the electors have been chosen on election day.
Given Congress’ clear constitutional power to determine the timing of the election, state legislatures would still not have the power to ignore the popular vote and decide to appoint electors after election day. The independent state legislature doctrine, if the Court decides to recognize it, would have no bearing on Congress’ power to lock in the date on which electors must be chosen. There has been loose talk that the doctrine would give state legislatures “plenary powers” over the presidential election, from which it supposedly follows that they could “reclaim” their power to appoint electors after the election has been held. That is incorrect. Even if the Court recognizes an independent state legislature doctrine, state legislatures would still be constrained by Congress’ requirement that the electors be chosen on the first Tuesday after the first Monday in November.
For completeness, there are two caveats I should add, which have nothing to do with the independent state legislature doctrine. First, federal law does include a provision permitting legislatures to appoint electors after election day if the election has “failed” in their state. This provision was intended for exceptionally narrow circumstances, such as a natural disaster that prevents voting, but as I have said before, this provision is dangerous because the law does not clearly specify the limited circumstances in which it applies. As part of reforming the Electoral Count Act, Congress will, I hope, fix that problem.
Second, and perhaps more dangerously, we now have to be concerned that a state legislature post-election might decide to conduct an “audit” or “hearing” in which the legislature claims the certified winner did not really win, due to the legislature purporting to find that there was fraud or irregularities in the election – with the legislature then finding that the “true” electors the people supposedly chose were ones the legislature would then certify. This would not entail the legislature claiming to appoint new electors after election day, but to be determining which electors the voters had in fact chosen on election day. With respect to the main point of this post, this move by a state legislature would have nothing to do with the independent state legislature doctrine. Litigation would undoubtedly follow, to determine who had indeed legally won the election, and a reformed Electoral Count Act could also provide security against this kind of maneuver.
But the central point remains: even if the Court recognizes an independent state legislature doctrine, such a doctrine would not give state legislatures any new power to appoint electors after the election has been held. With or without such a doctrine, state legislatures do not have and would not have “plenary power” to decide to appoint electors after the election has been held. The implications of an independent state legislature doctrine are wide-ranging, but that is not one of them.