Failed Elections and the Legislative Selection of Presidential Electors

35 Pages Posted: 2 Nov 2020 Last revised: 10 Nov 2020

See all articles by Justin Levitt

Justin Levitt

Loyola Law School Los Angeles

Date Written: October 17, 2020

Abstract

Questions about the state legislative role in determining the identity of presidential electors and electoral slates, and the permissible extent of a departure from regular legislative order, have recently reached peak prominence. Much of the controversy, including several cases to reach the Supreme Court, has concerned the constitutional delegation of power over pre-election rules. But a substantial amount of attention has also focused on the ability of state legislatures to appoint electors in the period between Election Day and the electors’ vote.

An asserted legislative role in the post-election period has two ostensible sources: one constitutional and one statutory. The constitutional provision — the portion of Article II allowing states to appoint electors in the manner the legislature directs — has received substantial scholarly and judicial attention. In contrast, there has been no prominent exploration of the federal statute, 3 U.S.C. § 2, despite text similar to the constitutional provision. This piece appears to represent the first exploration of that federal statute as an ostensible basis for legislative appointment of electors in the aftermath of an election, when that election has “failed to make a choice.” After reviewing the constitutional controversy, the essay canvasses the history of the statute and its context. And it discovers a previously unreported historical anomaly, which might well affect construction not only of the statutory text, but the constitutional predicate, in the event of a disputed presidential election.

Keywords: Presidential Electors, Election Clause, 3 USC 2, Failed Elections, Legislature, Revised Statutes, Constitution, Statutory Interpretation, Legislative History, Elections

Suggested Citation

Levitt, Justin, Failed Elections and the Legislative Selection of Presidential Electors (October 17, 2020). New York University Law Review, Vol. 96 (2021 Forthcoming), Loyola Law School, Los Angeles Legal Studies Research Paper No. 2020-29, Available at SSRN: https://ssrn.com/abstract=3714294 or http://dx.doi.org/10.2139/ssrn.3714294

Justin Levitt (Contact Author)

Loyola Law School Los Angeles ( email )

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HOME PAGE: http://www.lls.edu

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