“Justices seem poised to hear elections case pressed by GOP”

AP previews the possible news this week that SCOTUS may grant review of the North Carolina case raising the so-called “independent state legislature” doctrine. As we wait, it’s worth remembering this: whatever one thinks of the doctrine itself, it cannot give a state legislature power to change the rules for appointing a state’s electors AFTER the electors already have been appointed on the date specified by Congress, as Congress is empowered to do under the same Article II of the Constitution. The doctrine thus would NOT let a state legislature repudiate the result of the popular vote used to appoint the state’s electors on the ground that the legislature did not like the outcome of the popular vote and wanted instead to appoint the state’s electors directly. The date for their appointment, as mandated by Congress, already would have passed–and the appointment pursuant to the state legislatures previously chosen method (the popular vote) already would have occurred.

The only wrinkle in this is statutory, not constitutional: the provision in 3 U.S.C. 2 by which Congress has granted state legislatures a second chance to choose a new manner of appointing the state’s electors if there has been a “failure” to appoint them on the designated day. Common sense tells us that there is never a “failure” within the scope of 3 USC 2 if the state has been able to use its recount and related procedures to achieve a resolution of which party’s slate of electors won the popular vote and thus has been appointed pursuant to state law. (The argument that the recount process failed in Florida in the 2000 election was plausible because of the “statistical tie” between Bush and Gore in that state, and the imprecision of the procedures for determining who really won all of the disputed hanging chads, etc. But no such plausible argument regarding a failure was available in 2020–or would be available in any situation, as Ben Ginsberg testified last week, where the outcome in a state is in the magnitude of 10,000 votes rather than less than 1000.) But an essential part of Electoral Count Act reform currently under consideration in Congress is to clarify this point about 3 USC 2. Congress indeed needs to do this statutory clarification regardless of what SCOTUS decides regarding the scope of a state legislature’s authority to enact election laws under Articles I & II of the Constitution. (I elaborate more on this key point in my recent essay on ECA reform.)

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