USA TODAY International Edition
States can’t veto the voters’ choice
Founders were clear on Electoral College
Conservative radio talk show host Mark Levin has tweeted an all caps call for state legislatures to “get ready to do your constitutional duty.” Levin believes they have “the final say” on which slate of presidential electors gets to vote in the Electoral College. Under this theory, even if more people in a state voted for Democrat Joe Biden, their legislature would still have the power to pick a slate of Donald Trump electors.
In other words, the Republican legislatures in Arizona, Georgia, Michigan, Pennsylvania and Wisconsin could all now select a slate of electors for Trump. Needless to say, Levin’s theory has been embraced by many who continue to believe it can give President Trump a second term.
Levin is wrong about the power of state legislatures. But he’s not making his theory up out of whole cloth. There’s a kernel of truth to Levin’s theory. And it’s important to understand why that truth does not mean that legislatures have the power to do something that no legislature has ever done — to veto the results of a popular election and pick a slate of electors for the loser in that popular election.
Bush v. Gore
Levin grounds his claim on the part of the Constitution that gives legislatures the power to select the “manner” by which presidential electors are appointed. In Bush v. Gore, the Supreme Court interpreted that power to mean that the legislature could vest the selection of electors in the people — through a popular election — but that it could “take back” that power “at any time.”
On Levin’s reading, “at any time” includes after an election. So that after an election, the legislature could say, “Thanks for your input, but we’re going a different way.”
In fact, in Bush v. Gore, the Supreme Court was saying something very different. The court was certainly affirming a special role for the legislatures in selecting electors. And it may well have been affirming that a legislature’s power could not be controlled by state law.
For example, the Colorado Constitution requires that the electors be chosen by a vote of the people. On this reading, that constraint would not actually constrain the state legislature. Colorado legislators would be free to ignore their state constitution and pick electors on their own.
Nonetheless, such a decision would have to be made before the election, because of a second part of the Constitution that Levin has overlooked.
As well as giving the state legislatures the power to set “the manner” by which electors are chosen, the Constitution also gives Congress the power to decide the day ( the Constitution actually says “time”) on which electors are to be appointed. That day this year was Nov. 3.
And if any state selected its slate of electors on a day other than Nov. 3, it would violate federal law, and that slate could therefore not be counted.
There’s another more recent reason why Levin is wrong. That’s the unanimous decision of the Supreme Court last July in the “faithless electors” case. In that case, which I argued at the Supreme Court, electors had asked the court to recognize the original understanding of the Constitution and to affirm their power to vote for whomever they choose.
The Supreme Court rejected their argument. It may well be, the court observed, that electors were understood to have discretion at the founding. But whatever their understanding, democracy had overtaken it. After centuries of practice, the clear understanding of everyone was that electors had to vote as the people in their state had voted.
As Justice Elena Kagan put it, “Here, we the people rule.”
Democracy constrains states
That same principle applies even more strongly to state legislatures. Whatever else is clear about the framers’ Constitution, it is completely clear that they didn’t mean to give the legislatures any direct power to pick the president. They considered that. They rejected it. Instead, they gave the legislature the power to select the electors, who then themselves picked the president. But if democracy now constrains the electors, democracy must also constrain the legislatures.
It would wholly pervert the Founding Fathers’ design to say that electors are bound, but that legislatures are free. Whatever else the framers wanted, they certainly did not want to give legislatures that power.
Bargaining electoral votes
Because imagine the game legislatures can play if Mark Levin is right. After every election, state legislatures could then bargain with the candidates for president. “We’ll give you our votes, if you put the new Space Force headquarters in our state.” Or “increase the tariffs on foreign steel, and you’ll have our electoral votes.”
The power that Levin believes legislatures have would radically change the Constitution we have inherited. It would not be the Constitution history has given us — where “we the people” rule. It would instead be a Constitution the framers expressly rejected.
If the people have been given the power to select electors, the electors must follow the vote of the people. And so, too, must state legislatures.
Legislatures have no power to veto the choice of the people, once the people have voted.
Or put differently, “the constitutional duty” that the legislatures have is, like the electors, to respect the vote of their people.