Bob Bauer and Jack Goldsmith: The North Carolina Case in Perspective:  and Why the Danger of a Subverted Presidential Election Lies Elsewhere

The following is a guest post from Bob Bauer and Jack Goldsmith:

A wave of panic greeted the Supreme Court’s recent announcement that it will review a case involving North Carolina’s gerrymandered congressional map. The ultimate concern is that the Court’s resolution of the case will empower state legislators to appoint electors for president after the presidential election but in disregard of the election laws in place on election day and the results of the popular vote. Jamelle Bouie warns that the case threatens to permit states to “overrul[e] the will of the voters and do[] legally what Donald Trump and his conspirators pressured Republicans in Arizona and Georgia to do illegally.” Ian Millhiser concurs: “The case is perhaps the gravest threat to American democracy since the January 6 attack.” Charles Fried says the case portends “a slow-motion coup d’état.”

Predictions in this area are hazardous, but we side with the view that fears of this dire outcome are exaggerated. Those who worry about state legislative rejection of the presidential popular vote may be looking in the wrong direction. State legislatures, asserting authority under the Electoral Count Act, pose a significantly higher risk than any decision in the North Carolina case.

The ultimate concern about the implications of the North Carolina case centers on the meaning of the U.S. Constitution’s grants of authority to the “Legislature” of the state to determine the “Manner” of federal congressional elections and the “Manner” of appointing presidential electors to select the president. These constitutional grants arguably give the state legislature authority over federal elections that do not depend on the powers conferred by the state constitution. And that authority, in turn, might limit the ability of other state institutions, such as executive branch officials charged with the supervision of elections, to depart from the “Manner” of federal elections specified by the state legislature.

The precedents construing this authority raise more questions than they answer about the scope of a state legislature’s power over federal elections and have sparked confusion in the lower courts. Which brings us to the North Carolina case.  The issue there is whether a state court’s invalidation under the state constitution of a state legislature’s congressional map is consistent with the Constitutional allocation to the “Legislature” to control the “Manner” of federal congressional elections. There are a range of outcomes the Court might reach, and the case is unquestionably significant for the administration of elections around the country. The Court could interpret the scope of state legislative authority to seriously constrain the discretion of professional election administrators in interpreting state codes and the authority of state courts to hear and adjudicate challenges to those decisions.

But whatever the Court decides, it is highly unlikely that its ruling would, as feared, empower state legislatures to disregard or alter the outcome of the popular vote for presidential electors. The North Carolina case involves federal congressional elections, not presidential elections. As Ned Foley, Rick Pildes and others have noted, State legislative authority over the “Manner” of appointing presidential electors carries with it an important and unique counterpoint: The Constitution expressly gives Congress the authority to determine the time in at which presidential electors must be chosen. For over 150 years Congress has prescribed the election day for appointing presidential electors. Thus, even the most ambitious reading of a state legislatures’ power over the manner of federal presidential elections—an issue not presented in the North Carolina case—would not permit the state legislature to enact a new law after election day to change the outcome of the vote on the date prescribed by Congress. 

Moreover, even if the Court curtails the power of non-legislative state institutions to alter legislative rules about presidential elections, state and federal courts would still be able to enforce the federal equal protection and due process clauses to check state legislative mischief in trying to rejigger the proper outcome of a presidential election.  It is true that four conservative Justices, in cases concerning the 2020 presidential election, argued that state legislative control over the “Manner” of appointing presidential Electors imposed limits on other state institutions’ ability to alter the state legislature’s rules. But nothing in the logic of these opinions suggested that a state legislature that chooses to appoint presidential electors via a popular vote can disregard the results of that vote after the date of the presidential election prescribed by Congress.

The arguments for a more sober view of the significance of the North Carolina case are not pollyannish, just realistic.  A more serious concern lies in a somewhat different direction. It is that state legislatures might enact laws before election day that permit them after the election to alter or influence the outcome of the election-day popular vote. States have more leeway if they act pursuant to presidential election laws enacted prior to election day because the Constitution authorizes them to choose practically any “Manner” of appointing presidential electors, including, as happened earlier in U.S. history, state legislative appointment of presidential electors without any popular vote. And moreover, Section 2 of the Electoral Count Act, the federal law governing presidential elections, specifically authorizes states to appoint presidential electors after the election day prescribed by Congress if the State “failed to make a choice” on election day. 

North Carolina has a law on the books that shows how a State might enact statutes before an election to empower state institutions to alter the popular vote after the election. In express reliance on Section 2 of the Electoral Count Act, this law provides that if the Governor has not proclaimed the certified popular vote winner six days before the meeting of the Electoral College, the General Assembly may do so. Legislators are only limited in taking this action by “their best judgment of the will of the electorate.” Moreover, the law specifies that “the judgment itself of what was the will of the electorate is not subject to judicial review.”

Regardless of what the Supreme Court does in the North Carolina case, these provisions of North Carolina law could be the basis for a willing state executive and legislature to attempt to collude in disregarding the popular vote. Other states are considering laws that would contemplate legislative control over election administration and “audits” of outcomes that legislators dislike. There are many possible copycat variations on the North Carlina scheme that would put a law on the books before the election to empower legislatures after the election to shape the election’s outcome to its liking.

 These possibilities highlight yet again the vital importance of reforming the 140-year-old Electoral Count Act. The North Carolina law plausibly claims that the Electoral Count Act enables its potentially dangerous scheme.  A proper reform of the federal Act could go a long way towards checking such state legislative gambits, since it is far from obvious that the North Carolina law is constitutional absent its support in the federal Act.

To be sure, state power to enact schemes like North Carolina’s will ultimately turn on the relationship between (i) a State’s constitutional authority to appoint presidential electors in the “Manner” the state legislature directs, and (ii) Congress’s constitutional power to “determine the Time” of choosing federal electors. But the precise wording of the Electoral Count Act, hopefully a reformed one, will matter a lot too. So too will the outcomes of political battles in state legislatures over the state rules for choosing presidential electors. In these and other ways, protecting the integrity of the presidential election requires hard work in and public pressure on legislatures, not just courts.

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