Early caselaw distinguishes three issues: qualification of voters (who can vote), election of state and local officials, and election of federal officials, including the electors for President and Vice President. [1] The issues should not be confused, as they come up in a variety of lawsuits involving issues that are similar on the surface but quite legally distinct. Electors for President and Vice President can be selected in a broad variety of ways by State Legislatures, including statewide election (the most common method currently in use), apportionment by district (as in Maine and Nebraska), or through direct appointment by the Legislature (which was used in the early years of the Republic). Article I, Section IV of the Constitution specifies that
“[t]he times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof;” Article II, Section I, grants an even more open ended power: “[e]ach state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress.”
This affirmative grant of power through the Constitution overrides the usual function of state governments. The state legislatures are granted broad discretion by the U.S. Constitution as to Presidential and Vice Presidential electors, whereas state legislatures are bound by their own State Constitutions on issues of voter qualification and state and local elections. [2] There are two views on the limits of this power, which we colloquially refer to as the “superpower theory” and the “super-duper power theory.”
The “superpower theory”emphasizes that the U.S. Constitution grants broad discretion to legislatures, but that the act of selecting electors is a lawmaking act. Therefore, though the legislature is unconstrained by substantive requirements in their state constitution, they must obey certain procedural elements for lawmaking, because the act of choosing the method of elector appointments is an act of ordinary lawmaking. [3] Some versions of the theory even require presentment to the Governor. [4] This theory argues that “a legislature must function in the method prescribed by the State Constitution in directing the times, places, and manner of holding elections for senators and representatives in Congress, since in so doing it is exercising the function of lawmaking, it does not necessarily follow that when functioning in the manner prescribed by the State Constitution, the scope of its enactment on the indicated subjects is also limited by the provisions of the State Constitution.” Com. ex rel. Dummit v. O’Connell, 298 Ky. 44, 50 (KY App. 1944). This theory gained prominence shortly after WWI, and was applied to many WWII era cases. [5]
The “super-duper power theory” emphasizes the Lockean conception of the legislature as the preeminent branch of government, and holds that the State Legislature exercises “plenary” power [6] in determining how Presidential and Vice Presidential are selected “untrammeled” by the State Constitution, [7] with no restrictions on substance except those present in the U.S. Constitution, and without having to abide by the normal lawmaking process. “‘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.” McPherson v. Blacker, 146 U.S. 1, 35, 13 S. Ct. 3, 10, 36 L. Ed. 869 (1892) (quoting a report by Senator Morton). This view has support from early cases, which intensified around the time of the Civil War. There is also language in Chief Justice Rehnquist’s concurrence in Bush v. Gore that arguably hints at this view, describing the executive’s role in the election as a mere agent of the legislature. [8]
In the week preceding the 2020 election, two Supreme Court decisions have been directly related to the question of the legislature’s power in a presidential election. These two decisions illustrate the existing divide in the Court on the powers of the legislature. In a statement by Justices Alito, Gorsuch and Thomas, they seem to suggest the “super duper power” theory is law. Specifically, the Justices indicate that the legislature can not be constrained by the Constitution of the state. They stated, “The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office.” Republican Party of Pennsylvania v. Boockvar, 20-542, 2020 WL 6304626, at *1 (U.S. Oct. 28, 2020). In a related decision, Justice Gorsuch, in a concurrence joined by Justice Kavanaugh, also seems to support the super duper power theory. He wrote, “The Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.” Democratic Natl. Comm. v. Wisconsin State Legis., 20A66, 2020 WL 6275871, at *2 (U.S. Oct. 26, 2020). Yet, even amongst the conservative Justices, there seems to be controversy on this issue. Justice Roberts specifically distinguished Democratic Natl. Comm. v. Wisconsin State Legis from Republican Party of Pennsylvania v. Boockvar. He suggested that state legislatures are bound by state court’s decisions, which would undermine the “super duper power” theory. See Democratic Natl. Comm. v. Wisconsin State Legis., 20A66, 2020 WL 6275871, at *1 (U.S. Oct. 26, 2020).
Given the conflict in the court at the moment, it is important to consider what reading of the law is most consistent with other decisions of the court recently. Since there’s been few decisions in recent decades that directly speak to the question of the superpowers of the legislature in picking the presidential electors, it’s difficult to determine what interpretation should control. It is best to consider recently litigated related issues. One consideration is what “the Legislature” means in this context. The Supreme Court has decided that “Wherever the term ‘legislature’ is used in the Constitution, it is necessary to consider the nature of the particular action in view.” Smiley v. Holm, 285 U.S. 355, 366 (1932). Essentially, there are two ways to construe the term “Legislature” here. It can mean either, “the representative body which ma[kes] the laws of the people,” or it can mean “[t]he power that makes laws.” Arizona State Legis. v. Arizona Indep. Redistricting Commn., 576 U.S. 787, 813 (2015). The first definition only includes the legislative bodies of the states that are analogous to the House of Representatives and the Senate. For example, in Florida, that would only include the Florida House of Representatives and the Florida Senate. The second definition would include both of those bodies, as well as the other legal bodies that constrain them, such as the Florida judiciary.
Arizona State Legis. v. Arizona Indep. Redistricting Commn. (2015) is the most recent Supreme Court case to decide that “Legislature” could mean something more than the representative bodies. In that case, the people of Arizona argued that they were allowed to create an independent body for the purpose of redistricting legislative and congressional districts, to prevent gerrymandering. Since redistricting congressional districts falls within the state legislature’s power to control the “manner” of electing representatives, a power granted to the legislature under Art. I, § 4, cl 1., the state legislature argued that only they had that power. The Court ruled 5-4 that the people had that power because “Legislature” does not necessarily mean representative bodies. Given the parallel structures of Art. I, § 4, cl 1., and Art. II, § 1, cl 2., this decision supports the assertion that Art. II, § 1, cl 2, could be interpreted the same way.
However, Arizona State Legis. v. Arizona Indep. Redistricting Commn. (2015), was a 5-4 partisan decision in favor of the “liberal justices.” Three sitting justices at the time are no longer on the court (Scalia, Kennedy, and Ginsburg), and there are a total of three new Trump-appointed justices on the court (Gorsuch, Kavanaugh, and Barrett). Given this massive shift, a recent 5-4 decision may not have much strength. This is why Rucho v. Common Cause (2019) is important. There, the court decided that the federal judiciary was not the correct body to determine issues like partisan gerrymandering. They then spoke positively about state efforts to combat partisan gerrymandering. Specifically, they spoke highly of the Florida Court’s decision to strike down redistricting in violation of Florida’s Fair Districts Amendment. This affirms that state bodies do have some power over the manner of elections. Importantly, this decision was handed down by a 5-4 conservative leaning court. Thus, the conservatives have accepted that, at least in the Elections Clause, other bodies than “the legislature” have control over the “manner” of choosing.
Another recent case to consider is Chiafalo v. Washington. There, the court considered whether states have the power to bind their electors to the state popular vote. Most importantly for the present consideration, the Court repeatedly minimized the role of the legislature in choosing presidential electors, and emphasized the importance of the people of the state choosing the electors. This decision was 9-0, and decided just this past July. The general tenor of the decision would seem to suggest that the legislature may not have so much power to throw out votes of the people.
[1] On qualifications: “It belongs to the legislative department of the government to decide who shall have the right of voting, what shall be the qualifications of voters, and when and where the qualified voters shall exercise the right, except so far as the legislative authority is limited and restrained by the fundamental law; and this general authority over the whole subject belongs to the legislature of this State, with such limitations only as are imposed by the Constitution of this State and that of the United States.” In re Opinions of Justices, 45 N.H. 595, 597 (N.H. 1864);. On state/local elections and the contrast with election of federal officials: “The bill then under consideration, as stated in the opinion, related to the election of State, county and town officers, and any general expressions used could not have been intended to have an application more extensive than the subject matter then under consideration. We find in that opinion no mention of the Constitution of the United States, whereas the question as to the election of Representatives to Congress and of Electors of President and Vice President is governed wholly by the Constitution of the United States as the paramount law, and the Constitution of this State has no concern with the question” Id. at 599
[2] See footnote 1
[3] “In short, we think that the holdings of the Supreme Court in the case last referred to, so far as they are applicable to the question before us, may properly be said to mean no more than that the legislative process must be completed in the manner prescribed by the State Constitution in order to result in a valid enactment”
Com. ex rel. Dummit v. O’Connell, 298 Ky. 44, 50, 181 S.W.2d 691, 694 (KY App. 1944)
[4] “That practice is eloquent of the conviction of the people of the states, and of their representatives in state Legislatures and executive office, that in providing for congressional elections, and for the districts in which they were to be held, these Legislatures were exercising the lawmaking power and thus were subject, where the state Constitution so provided, to the veto of the Governor as a part of the legislative process.” Com. ex rel. Dummit v. O’Connell, 298 Ky. 44, 49, 181 S.W.2d 691, 694 (KY App. 1944).
[5] Smiley v. Holm, Secretary of State of Minnesota, 285 U.S. 355 (1932) originated this line of cases. Some lawyers also argued that McPherson v.Blacker provided a similar limit with the language “legislative power is the supreme authority, except as limited by the constitution of the state.” McPherson v. Blacker, 146 U.S. 1, 25, (1892). However, the O’Connell court rejected this interpretation because the McPherson court also stated “[t]he clause under consideration does not read that the people or the citizens shall appoint, but that ‘each state shall;’ and if the words, ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the state in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.”
McPherson v. Blacker, 146 U.S. 1, 25 (1892). Thus, Smiley is the proper originating case.
[6] Bush v. Gore, 531 U.S. 98, 104 (2000)
[7] “This provision of the Constitution, which gives the State legislature authority to prescribe the time, place and manner of holding elections, but reserves to Congress the power to make and alter such regulations, leaves no ground for serious doubt that the Constitution regards a law which prescribes the place where an elector shall vote, as a mere regulation for the exercise of his right, and not as a qualification of the elector within the meaning of the term as used in the Constitution; and therefore the legislature, under the Constitution of the United States which gives them authority to prescribe the place of holding elections for Representatives in Congress, exercise that authority untrammeled by the provision of the State constitution”
In re Opinions of Justices, 45 N.H. 595, 605 (N.H. 1864)
[8] “The state legislature has delegated to county canvassing boards the duties of administering elections.” Bush v. Gore, 531 U.S. 98, 116 (2000) (Rehnquist, C.J., Concurring). This arguably contradicts Smiley, but Justice Thomas has recently signaled he believes Smiley is limited to certain Congressional elections or redistricting, and thus would not apply to selection of Presidential and Vice Presidential electors. Arizona v. Inter Tribal Council of Arizona, Inc., 570 U.S. 1, 34 (2013) (Thomas, J., Dissenting). Thomas’s argument, if accepted by the Court, may also limit the applicability of Rucho to the Presidential context.