There have been some doomsday scenarios about activities state legislature might engage in after Election Day. A little context (and a long blog post!) may help explain why state legislatures are not free to do whatever they’d like, contrary to some right-leaning and left-leaning commentary over the last few weeks.

Article II, Section 1, Clause 4 provides, “The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.” While there was no fixed date for the first several presidential elections, in 1845 Congress fixed the time of choosing presidential electors as the Tuesday after the first Monday in November. It remains that date to this day. In 2024, that time of choosing is November 5.

This means there is one day of choosing electors. In 1845, there was also a provision that if a state failed to make a choice on election day, it could take place later; that provision was eliminate in the Electoral Count Reform Act of 2022.

All 50 states and the District of Columbia are holding a popular election on November 5 to choose electors. All of them have enacted such provisions by law.

We can break down the consequences of this statute and these state decisions into several components.

[1] It means that while the state legislature holds the power to direct the manner of appointing electors, it cannot appoint electors on November 6 or November 30 or December 16. The Time of Choosing Clause empowers Congress to pick a date. There are few exercises of congressional power more crystal clear than this. The legislature has no choice over the time once Congress has chosen the time.

So let’s look at some of the recent doomsday scenarios. This from Politico:

In 2020, however, some Trump allies argued that legislatures have unilateral, incontestable power to change their minds — and could simply claim lack of faith in the results to snatch the decision back for themselves. Conservative attorneys like John Eastman and Kenneth Chesebro, who have both been criminally charged for their roles in the 2020 election process, developed this theory and lobbied for such an outcome. Under their theories, state legislatures would send their own competing slate of electors to Congress — alongside the slates submitted by governors — and urge Congress to choose between them. Trump increasingly leaned on these fringe ideas as his traditional routes to power began to close.

. . .

This year, if Republican-led legislatures appoint alternate electors, then pro-Trump slates could move ahead to Congress alongside the pro-Harris slates approved by governors. (Five of the seven swing states have Democratic governors. And in a sixth state, Georgia, Republican Gov. Brian Kemp resisted Trump’s efforts to overturn the state’s results in 2020.)

That would be a direct challenge to the post-Jan. 6 effort intended to prevent this kind of constitutional clash. In 2022, Biden and Congress passed a law reforming the Electoral Count Act of 1887, intended to clarify that only governors — not legislatures — are empowered to send certified slates of electors to Congress, unless a court steps in to override the results. Harris has pledged that when she presides over the counting of presidential electors on Jan. 6, 2025, she will follow this law. But if any legislatures send her an alternate slate, there is an open constitutional question as to whether she must also offer it to Congress for consideration. What Congress would do with the slates backed by legislatures is equally uncertain, but their very existence would cast a cloud over the proceedings and, like everything else, fit neatly into a Trump pressure campaign.

There is, quite literally, no open constitutional question. If the legislature chooses an electoral slate after November 5, it is not authorized by federal law, a law enacted pursuant to the clear dictate of the Time of Choosing Clause under the federal Constitution.

From a recent Rolling Stone story:

Raiklin’s plan hinges, he said, on the legislature leaping into action in early 2025, just before the Electoral College certification in Congress. But only if Trump loses. “If it’s legit, we don’t have to worry, right?” Raiklin told the crowd of the November contest. “But who thinks it’s going to be legit? You think they’re just going to give it to you? No, there’s going to be a fight!” 

Noting that both the North Carolina state House and Senate have strong GOP majorities, Raiklin called on attendees to “apply the necessary motivation” if Trump loses to force them to overturn any Harris victory, by convincing the bodies’ leaders that “they have the political obligation to remedy an illegitimate election.” 

As I told the Washington Post, it would be flagrantly illegal for state legislature to appoint electors after Election Day.

[2] Suppose the state legislature wanted to appoint electors itself. Could it do so?

There’s some recent scholarship suggesting that under Section 2 of the Fourteenth Amendment the state must hold a popular election for president, but I think that’s inconsistent with congressional precedent in Florida in 1868 and Colorado in 1876; the Court’s precedent from 1892 forward; and other textual and structural reasons. That is, if the state legislature wanted to appoint electors itself on November 5, it has the constitutional power to do so.

But the state legislature must do so pursuant to law. And right now, all state legislatures have chosen a manner of appointment by popular election. For a state legislature to directly appoint, it would need to affirmatively repeal those laws, then direct itself as the entity to do the appointment; or supersede existing laws. Here’s what I recently told CNN:

Derek Muller, a law professor at the University of Notre Dame, told CNN that state legislatures would have to first repeal their laws that dictate how elections operate before appointing electors directly.

“It’s too late for the legislatures to act,” Muller said. “You’d have to go through and remove all those laws on the books, and if you’re doing that in the middle of this moment when there’s already elections happening, then you’re going to risk due process violation of changing the rules arbitrarily.”

There’s the ordinary legislative procedure angle.

There’s also a separate due process concern about changing the rules of appointment in the middle of the existing process to appoint electors.

So, is it theoretically constitutionally possible for the legislature to direct that it, itself will do the appointing? In my view, yes. But may it do so now? No, at least not without going through the legislative process (including potential gubernatorial veto), and even then likely runs afoul of due process or related concerns. (As of today, November 1, of course, no state has done so.)

[3] But doesn’t the state legislature hold an inherent, plenary power to determine the rules of appointing electors? Circling back to Politico, we can see this view:

Eastman, who had his law license suspended because of his role in the last election, told POLITICO that the theory he espoused in 2020 remains viable — and perhaps has even been strengthened — by the legal battles and law changes of the last four years. He has long argued that when it comes to the Electoral College process, state legislatures cannot be bound by federal law, since the U.S. Constitution grants them “plenary” — absolute — authority to choose electors. He says the law enacted by Biden actually makes the Electoral Count Act “more unconstitutional, not less.”

“The Article II power remains what it was (and could never have been restricted by statute, in any event),” Eastman said in an email. Whether any GOP congressional leaders agree with him on Jan. 6, 2025, will determine whether Trump can make a last-ditch effort to reverse the outcome.

As an aside, it’s an error to claim that John Eastman has “long” held this view, as I documented in 2021.

But it is further worth noting some constraints, because there’s plenary and then there’s plenary.

[3a] It’s quite obvious that “plenary” cannot refer to some aspects of timing. That is, if the legislature chooses to appoint on November 6, it cannot do so. That is because Congress has dictated the time of choosing as November 5.

[3b] But there is a robust judicial precedent that, if misinterpreted, might suggest otherwise. Here’s McPherson v. Blacker (1892):

“The appointment of these electors is thus placed absolutely and wholly with the legislatures of the several states. They may be chosen by the legislature, or the legislature may provide that they shall be elected by the people of the state at large, or in districts, as are members of Congress, which was the case formerly in many states, and it is not doubt competent for the legislature to authorize the governor, or the supreme court of the state, or any other agent of its will, to appoint these electors. This power is conferred upon the legislatures of the states by the Constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States. Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.” Senate Rep. 1st Sess. 43d Cong. No. 395.

From this review, in which we have been assisted by the laborious research of counsel, and which might have been greatly expanded, it is seen that from the formation of the government until now, the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors.

The “plenary” language comes from McPherson, but so does another phrase: the power of the legislature to resume the power “at any time.”

But here’s the problem. McPherson involved a situation where the Michigan legislature, by a statute enacted in 1891, changed the law, by enacting a new statute, before the election of 1892, regarding the appointment of electors. The phrase “at any time,” at least as used in this judicial opinion, obviously means a mechanism before the time of choosing electors.

But this quotation is on even weaker footing. The Supreme Court was citing a Senate committee report from 1874, in a standalone context–it was never attached to any legislation. It can certainly reflect what a subset of some Senators believed to be the case. But it is hardly the most robust means of understanding what the Time of Choosing Clause means.

This quotation, admittedly, includes robust statements about the state legislature’s power. For instance, the Senate report notes, “This power is conferred upon the legislatures of the states by the Constitution of the United States, and cannot be taken from them or modified by their state constitutions any more than can their power to elect senators of the United States.” That view has been expressly repudiated (in the Electors Clause context, not the Presidential Electors Clause context) by the Supreme Court in Moore v. Harper–the power of legislature can be modified by state constitution.

One more qualification. Even if one were inclined to find the Senate report persuasive, the next paragraph of that report begins like this: “Therefore, under the Constitution as it now stands, it is in the power of any legislature to repeal all laws providing for the election of electors by the people, and take such election into their own hands. It may be said this is not likely to be done ; but the answer is that it may be and that it has been done; and who can tell what may be the future exigencies of parties and politicians, or what they may not do?” (Emphasis added.) That is, the legislature must repeal the law before it may appoint on its own, if it has enacted laws to the contrary.

[4] Suppose the state legislature wanted to certify the election results itself. Could it do so?

[4a] To one limited degree–by “certify,” we mean finalizing the canvass of the vote–the answer is likely yes. The legislature does not do this, understandably, because it is largely a tedious and boring process of arithmetic left to election administrators.

But, again, it would need to do so, by law, before Election Day. No state has done so. (And even if it did, it would be independently constrained by other things, like pre-existing state law, or federal constitutional constraints like due process and equal protection.)

Part of this turns on the Electoral Count Reform Act. 3 U.S.C § 1 requires, “The electors of President and Vice President shall be appointed, in each State, on election day, in accordance with the laws of the State enacted prior to election day.” The appointment, including relevant rules for canvassing the vote, must be enacted before November 5.

Congress’s power to enact such rules fits its power under the Time of Choosing Clause, the Counting Clause of the Twelfth Amendment, and the Necessary and Proper Clause. That is, it can extend some conditions about the timing of the election to include the body of law that is in place at the time of the election; and it can stipulate rules to assist it in determining what electoral votes to count and not to count under the Twelfth Amendment (such as, when determining what votes are “lawfully certified,” looking at the rules in place at the time of appointment of electors).

[4b] Now, again, returning to [3b], one might argue the state legislature has “plenary power” to decide how to choose to canvass the vote, and that it can change the rules for canvassing after the election has already taken place. Again, I think, for the same reasons, the “appointment” encompasses all of the rules to ascertain and perfect that appointment, and the Time of Choosing Clause can insist that all of those rules related to the choice are in effect at the time the choice is made. Relatedly, there would be potential Due Process concerns with altering the rules after the fact.

[4c] Separate and apart from how the state chooses to canvass the vote is the formal act of “certification.” Congress will accept from the “executive of each State,” under the Electoral Count Act, the certification of ascertainment of appointment of electors. The executive is the governor, unless the legislature has appointed some other executive actor.

Since Congress enacted a statute in 1792 on the topic, Congress has required the state executive to certify presidential election results and submit them to Congress. This practice predates the Twelfth Amendment, so to the extent there is any dispute about its legitimacy under Article II, it is quite clearly a background practice of Congress when it ratified the Twelfth Amendment in 1803. (I highlight that background here, at pp. 356-65 in both presidential and congressional elections; and here, at pp. 1029-31 in presidential elections.) Congress’s choice to enact rules to help guide its counting of electoral votes, including clarity about the executive actor responsible for certifying the state’s electoral votes, is firmly fixed in longstanding federal law.

So while it would be plausible for a state legislature to choose itself as the canvasser, it could not identify itself as the one who certifies the results under longstanding federal law. And to the extent the state legislature wanted to certify the election, not only does (constitutionally permissible) federal law forbid it, but the practice of Congress has long been to disregard returns without such an executive certification.

I understand that some continue to argue the power of the legislature will be “plenary.” But without constantly repeating that word and failing to explain how these longstanding federal laws and suite of constitutional provisions all simultaneously fail, means such legal theories ring hollow.

[4d] That is why some of the more egregiously incorrect scenarios turn on a misunderstanding of state legislative power. Here’s one misunderstand from The Nation:

They could try that again, but for this scheme to work, they don’t even have to get “fake” electors submitted but just to convince Republican state legislatures or Republican governors not to submit their valid slates of electors before statutorily imposed deadlines. . . .

Let’s say Vice President Kamala Harris wins the bare majority of Electoral College votes necessary, 270, but the Republican legislature in Wisconsin refuses to submit the state’s 10 electors by the deadline.

The legislature has no power to submit electors after Election Day, and it has no role in certifying the results. That is not a law on the books and not within its authority. And again, the state executive is still ultimately responsible under longstanding federal law.

From a former member of the House of Representatives on the platform formerly known as Twitter:

I will do a longer video on this, but the real pressure point after the election will be in state houses. MAGA will pressure republican state houses where Kamala wins to simply not certify. Then what? Likely Supreme Court, possible violence. Be aware

The same here. No state law empowers a state legislature to certify, and federal law requires an executive official to certify.

* * *

To be clear, some might try to make such arguments in the public sphere, and some, on the left and the right, are making such arguments now. Those arguments are legal error. They can sow public distrust in our elections, to be sure, but they will not result in legal scenarios where the “loser” of an election somehow becomes the “winner” through some sleight of hand of the state legislature. There is certainly robust power that the legislature has over presidential elections, including great deference over dictating its rules before the election. But once Election Day comes, that power is greatly diminished, and longstanding legal frameworks set forth the process for canvassing the vote, ascertaining the winner, challenging the results under recount or contest rules, and certifying the results. Those legal frameworks, not fanciful post hoc novel frameworks, should be the focus of legal commentary.