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Article II, Section 1, Clause 2 of the Constitution states "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors".

This seems to be a non-legislative power.

By non-legislative power, I mean powers that still belong to the legislature, but involve duties that do not produce laws. Examples are treaties, approving appointments, impeachments, expelling member, and in the case of the clause in question, selecting electors. Legislative powers change laws, non-legislative powers conduct business. Executing a non-legislative power involves a decision made by the legislative body. That decision does not become law, but affects the operation of government.

Does this mean a state legislature, could at any time, choose to appoint electors regardless of public election results and state laws?

Further, why doesn't this clause invalidate state laws that provide for the selection of electors by popular election? Do state legislatures "sign-off" on presidential election results in order to comply with this clause, if indeed it grants a non-legislative power?

Perhaps this question is a better fit for law, but it seems politics has to be involved in the reason why our system works as it presently does.


As I understand, legislatures can establish their own internal rules, which would govern any exercise of their non-legislative powers, but it's not clear to me that a legislature must be bound by law in their exercise of those powers.

Internal rules can be debated and changed within the legislature. Laws, however, require the approval of the executive. If a law attempts to supersede a non-legislative power, it doesn't seem that the legislature can choose to change it without requiring the signature of the executive, thus making that power subject to another branch.

I'm looking for answers to that question, one way or the other, ideally backed by precedent, constitutional citation, academic analysis, or historical examples.

I would imagine fear of massive political repercussions prevent legislatures from ignoring the popular vote, so these questions are mostly academic. However, that's a separate issue.

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  • a state can do whatever it wants: auctions, votes, foot races, cage matches...
    – dandavis
    Jan 29 at 5:19
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    What is a "non-legislative power" and why does this seem to be such? Jan 29 at 17:38
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    "in the case of the clause in question, selecting electors": but that statement is not correct. On the contrary, the power granted is not to select electors but to direct the manner of appointing electors. It may seem a trivial distinction, but here it is not, because the question at hand is whether the legislature may vest the appointment of electors in some other body. In the first case, that might be debated, but in the second case it cannot. See the paragraph I just added to my answer.
    – phoog
    Feb 1 at 17:57
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    The answers seem to have overlooked the practical aspect. If the legislature decided to override the results of the election, the voters would not be happy, and would likely vote them out of office at the next opportunity.
    – jamesqf
    Feb 1 at 18:50
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why doesn't this clause invalidate state laws that provide for the selection of electors by popular election?

Because

in such Manner as the Legislature thereof may direct

means they can make their own state laws.

Regarding the 1st question

Does this mean a state legislature, could at any time, choose to appoint electors regardless of public election results and state laws.

That also depends on the state's own constitution etc., especially the "at any time" part. Some (state specific) process would have to be followed e.g. for changing the state's law.


Regarding this last q

As I understand, legislatures can establish their own internal rules, which would govern any exercise of their non-legislative powers, but it's not clear to me that a legislature must be bound by law in their exercise of those powers. I'm looking for answers to that question, one way or the other, ideally backed by precedent or historical examples.

If Congress could just ignore its own laws as (not) applying to itself, why do you think they bothered to carve explicit exceptions for Congress from numerous laws like OSHA, FOIA, etc.?

And with regard to state legislatures "changing their mind" with respect to electors already sent, that's also subject to constraints from federal law (3 U.S. Code § 5)

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

Basically, States can't "take back" (or change) the electors retroactively after Election Day. They could have conceivably changed their state laws or even appointed the electors (directly by state legislatures) before Election Day.

Actually, what you seem to be taking about here has been (somewhat derisively) called "legislative superpower" and it was actually proposed by a minority of the US Supreme Court. Notable proponents include Rehnquist (in the past obviously) and Kavanaugh now. So, if this somehow reaches the Supreme Court again, given the current more right-wing bias of the Court, maybe they would strike down 3 USC § 5, who knows...

The actual controversies in which Rehnquist (then Kavanaugh) opined were actually a bit different, namely whether legislature was to be interpreted narrowly (only as the elected body) or if it extended to the state's courts, i.e. whether the latter were allowed to interpret the state's laws in this matter. There was no actual case brought in which the state legislature (narrowly defined) actually changed the electors. So you could say that is (totally) untested.

The issue (of how extend that to post-election override) has been hashed a bit in the media by law academics, e.g.:

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.

But 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.

Somewhat more cautiously a 2019 paper argues that such an override would be a violation of the Due Process Clause (14th Ammendment) e.g. because courts held that "[if] the election process itself reaches the point of a patent and fundamental unfairness, a violation of the due process clause may be indicated", but that only if there were not extenuating circumstances like e.g. a natural disaster that made the normal (state-law prescribed) election impossible. Such an exemption is actually provided for in federal law itself:

Congress itself has explicitly recognized that “the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct” if and when “any State has held an election for the purpose of choosing electors, and has failed to make a choice.” [3 U.S.C. § 2.]

(More extensive works have been written on how courts have interpreted due process in the context of elections. While SCOTUS itself has never explicitly applied the Due Process clause to an election matter nor held that liberty under the 14th Amendment includes the right to vote, lower courts have done so. On the other hand SCOTUS itself has "often waxed romantically on the profound importance of the right to vote in general" as it has e.g. in several passages of Reynolds v Sims.)

Ultimately, the 2019 paper argues that in case of competing slates of electors from the same state, it comes down to a (political) decision in the US Congress which of them to count. (The pressures we saw Trump put on Pence basically illustrate that. In the latter context, the Electoral Count Act (3 USC chapter 1)--which Pence followed--has also been declared unconstitutional by some lawyers (and long before 2020) imputing it such long list of constitutional violations that it would be really distracting to even summarize them here. In some sense, that's a parallel debate to the one on what state legislatures are or aren't allowed to do with respect to electors. Suffice to say that the Electoral Count Act hasn't been found unconstitutional by any court insofar, as far as I know (that paper itself admits that it's holding a minority view). In addition to that, it has been debated whether [constitutionally speaking] ECA is truly a statute or just a joint rule--which would have implications whether the President should have a say [veto] in changes to it. To really test this, Congress would have to try to amend ECA's rules all by itself, bypassing the President, which against hasn't happened. What you asked about the states' executive having a say in [elector election] law changes is basically analogous to this debate. So, yeah, theoretically there are a lot constitutional crises possible in relation to electors, but unless someone actually plays those hardballs, at best you'll have some academics ponder them.)

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    @Kylos who (besides you) says this is a "non-legislative power"? And state laws can definitely bind the legislature until they change the law.
    – Fizz
    Jan 28 at 20:52
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    @Kylos: absolutely they would be bound unless they changed the law. Parliamentary supremacy means parliament can change laws, it doesn't mean it can just ignore them.
    – Fizz
    Jan 28 at 20:55
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    @Kylos: Here's another example, the US House of of Representatives can determine the seating (qalifications) of its own members, but nonetheless they passed the Federal Contested Elections Act.
    – Fizz
    Jan 28 at 21:01
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    @Kylos Here's an example for you: Congress just passed a law which explicitly created an exception to another law to allow the Senate to confirm a cabinet appointee. If Congress was not bound by the laws it passed (until such time as it repealed them) then there would be no point to a law restricting who can be appointed and/or no need for an exception to it.
    – Bobson
    Jan 28 at 21:52
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    And to continue @Bobson's example, the 2016-2017 occurrence of the same issue was even more complicated: Congress passed a law (via an appropriations rider) that overrode its (Senate) Rules, just so that that appointment could made expeditiously. If laws don't take precedence over Rules, why would they have bothered with that? politics.stackexchange.com/questions/62163/…
    – Fizz
    Jan 28 at 22:43
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Article II, Section 1, Clause 2 of the Constitution states "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors".

This seems to be a non-legislative power.

The Constitution defines what is and is not a legislative power, and that article defines this to be the power of each state's legislature.

Further, why doesn't this clause invalidate state laws that provide for the selection of electors by popular election?

Because the Constitution says state legislatures get to decide how their electors are chosen, and state legislatures make state law.

Legislatures are allowed to define their own rules and delegate their power to other authorities such as a secretary of state or electoral board.

Do state legislatures "sign-off" on presidential election results in order to comply with this clause, if indeed it grants a non-legislative power?

Only if a particular state legislature passes a law saying they have to.

Does this mean a state legislature, could at any time, choose to appoint electors regardless of public election results and state laws?

Not at any time. And not regardless of state law. They must abide by their own laws and state and Federal constitutions.

But yes, a state legislature may pass laws where they choose the electors regardless of public election results. Originally most state legislatures simply appointed Presidential electors. That system is no longer used, but remains an (extremely anti-democratic) possibility.

However, they are free to change their laws, subject to constitutional challenges. They are constrained by their state constitution, the 14th and 15th Amendments to the US Constitution (possibly others), and Federal voting rights laws.

An example is the National Popular Vote Interstate Compact. Once a majority of states adopt the compact, they will allocate their electors according to the national popular vote. This, in effect, uses the state's powers under Article II, Section 1, Clause 2 to elect the President by popular vote.

Another example is that while most states allocate their electors all-or-nothing, a few split them by Congressional district.

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  • 1
    @Kylos Those are all governed by laws, state and federal constitutions, and chamber rules.
    – Schwern
    Jan 29 at 20:09
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    @Kylos In the general sense, a state legislature gets to decide how it goes about its business which includes things like how it decides its own rules (within the bounds of its constitution and applicable Federal rules) and how it selects electors. It just has to be consistent with its own rules (laws, constitution, etc...)
    – Schwern
    Jan 29 at 20:12
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    @Kylos "but it seems to me the legislature still has to vote to accept that result" Only if that's what they say they must do. If the law says something like "we accept the result determined by <set of rules and laws and how to enact them>" no further vote is necessary. For example, when someone is arrested for violating a law the legislature doesn't vote to confirm the arrest, that's what laws are for. Nor can they vote to simply ignore the law unless their rules say they can (which could run into constitutional problems).
    – Schwern
    Jan 29 at 20:28
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    @Kylos When it comes down to it, yes, the bottom line hindrance to legislative corruption in a representative system is "the prospect of an enraged populace" aka being voted out.
    – Schwern
    Jan 29 at 20:38
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    @Kylos "the power still belongs to the legislature to make a decision": the power is to make a decision about how to pick electors, not necessarily the power to pick them itself. The law providing for popular election of presidential electors is the legislature's act exercising the power granted to it in the constitution. Laws generally require the governor's assent, and if the legislature wants to change its mind about how to appoint electors, that also needs the governor's assent. See my answer.
    – phoog
    Jan 31 at 22:40
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This question overlooks the fact that when the constitution speaks of a legislature it's usually talking about the government as a whole (a holdover from the state of affairs in the UK). Congress has the power to collect taxes according to the constitution, but what that really means is that congress has the power to make laws that provide for the executive branch to collect taxes and for the judicial branch to compel people to pay taxes.

Similarly, state legislatures have the power to specify the manner of appointing presidential electors. The mechanism for making that determination is to pass a law saying how it is to be done. That law must be signed by the governor or pass through whatever other mechanism the state's constitution might provide for passing a law. Thus, the constitution does not "invalidate state laws that provide for the selection of electors [by some means or another]"; rather, it requires states to pass laws providing for the selection of electors.

In other words, the conclusion that this is a "non-legislative power" is incorrect.


On further reflection, it occurs to me that this question would make a lot more sense if the constitution had granted the role of choosing presidential electors directly to state legislatures. Then we could debate whether states could delegate that power to the people through a popular vote, or to anyone else by any means whatsoever. But the constitution didn't grant that role directly to state legislatures (in contrast with the power to choose senators, where it says "chosen by the legislature thereof" rather than "in such manner as the legislature thereof may direct"). Instead, it granted the power to decide how the electors should be chosen. That is a rather broader grant of power.

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  • you said "The mechanism for making that determination is to pass a law saying how it is to be done." Is that how the states that used legislative selection in the earliest presidential elections selected electors? en.m.wikipedia.org/wiki/…
    – Kylos
    Feb 2 at 5:08
  • @Kylos I rather suspect that they did. It shouldn't be too hard to find the legislative records of at least one of those states online.
    – phoog
    Feb 3 at 5:46
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The Constitution is not ordinarily interpreted so casuistically where fundamental rights like voting are concerned. For instance, the First Amendment clearly states,

Congress shall make no law...abridging the freedom of speech,

yet in practice, courts have held that many governmental regulations that blatantly abridge freedom of speech, from obscenity, to incitement, to shouting "Fire!" in a crowded theater, to laws against slander, libel, and perjury, are 100% in concordance with the First Amendment.
Most would agree that these restrictions, far from being unconstitutional infringements, are essential to a functional civil society, and that the Constitution's framers never intended to preclude these restrictions on speech.
Even the most partisan SCOTUS would surely blanch at such a monarchical interpretation of the legislature's power to appoint electors "in the manner of their choosing", if the electors are chosen without any input from voters, much less contrary to the clearly expressed will of the people.
Rather, it seems more likely that SCOTUS would interpret Article II's phrasing narrowly that legislatures can make laws governing how elections are administrated, but they can't overrule, negate, or abolish free and fair elections for arbitrary and capricious (not to say dictatorial) reasons.

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  • But there's nothing in the constitution preventing a state legislature from giving itself the power to select presidential electors. In fact, some states have indeed done so in the past. The question is about whether a state legislature can first specify that electors are to be chosen by popular vote and then, after the vote is counted, declare that it didn't like the outcome and specify a different manner of selecting the electors.
    – phoog
    Feb 3 at 5:44
  • @phoog "There's nothing in the Constitution preventing" libel, either. In fact, a very literal, textual reading of the Constitution would imply that laws against libel are unconstitutional, because they abridge freedom of speech by definition. Yet laws against libel have repeatedly been found to be constitutional. The whole point of my answer was to highlight that when X is sufficiently bad or dangerous, "There's nothing in the Constitution preventing X" generally does not hold up in court. Feb 3 at 6:57
  • @phoog "Some states have done so in the past"--OK, but how long in the past? They just stopped last week? Last month? They stopped ten years ago? Fifty? One hundred? This line of argument carries exponentially less precedential weight/legal force the further back into antiquity you have to reach to find supporting examples. Feb 3 at 7:00
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Does this mean a state legislature, could at any time, choose to appoint electors regardless of public election results and state laws?

No. The clause does not "grant" to the legislature any authority independent of the state's constitution. Rather, it requires the state, when enacting laws for the purpose of appointing electors, to leave to the legislature the manner of choosing those electors. This means that the executive, judges, or an ad hoc committee is not to decide the manner of appointing electors.

Further, why doesn't this clause invalidate state laws that provide for the selection of electors by popular election?

Because the clause is not a grant of authority, it indirectly requires the enactment of laws, rather than invalidating them.

Do state legislatures "sign-off" on presidential election results in order to comply with this clause, if indeed it grants a non-legislative power?

No, in the normal course of events, the legislature has no involvement with election results or the appointment of electors. Under 3 U.S. Code § 2 - Failure to make choice on prescribed day, the legislature would be involved.

Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.

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  • "This means that the executive, judges, or an ad hoc committee is not to decide the manner of appointing electors." It's unfortunately necessary to note that the state legislature can delegate its power (subject to guiding principles) to the executive, judges, or committees and often does to the Secretary of State and election boards. Many misguided arguments about the 2020 election overlooked this power to delegate.
    – Schwern
    Jan 29 at 0:24
  • @Schwern - Not to the manner of appointment, but to the identification of those appointed.
    – Rick Smith
    Jan 29 at 0:27
  • “ Because the clause is not a grant of authority, it indirectly requires the enactment of laws, rather than invalidating them.” What’s the basis for this claim? The impeachment power, for example, doesn’t require the enactment of laws. As I read it, this clause doesn’t say anything about laws, which after all require both a legislature and an executive. It wouldn’t make sense to involve the executive in impeachments; why should it be involved in this power?
    – Kylos
    Jan 29 at 1:19
  • @Kylos - For the first part, federalism. For the second part, separation of powers within each state's government. That is, the legislature makes election laws, the executive gives effect to those laws. Without the election laws, there would be no election or electors.
    – Rick Smith
    Jan 29 at 1:40
  • @RickSmith do you imagine that that the federal executive is prohibited from collecting taxes because the constitution grants that power to congress? Of course not. Congress can delegate that power to the internal revenue service. Similarly, state legislatures can delegate any of their powers to the executive or judiciary. And, like all legislation, statutes concerning the appointment of electors are subject to the governor's signature (if the state's constitution so provides) and to the courts' review.
    – phoog
    Jan 29 at 4:36

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