Dem
51
GOP
49
If you haven't heard about the Supreme Court case Moore v. Harper yet, just hang on. You will soon. Basically, North Carolina Republicans and some allies have an originalist reading of the Constitution, specifically, Art I. Sec. 4, which starts out like this:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The plaintiffs' argument is that if a state legislature wants to send in its own slate of electors, it can do so and there is nothing the state's voters, governor, or courts can do about it. The Constitution says "legislature." The left is in an advanced state of panic about this case. See, for example, here. For the five swing states discussed above, in Wisconsin, Arizona, and Georgia, Republicans control the state legislature. Democrats control it in Michigan and Pennsylvania is split.
However, Matthew Seligman, a fellow at the Stanford Law School, has brought up another point that many of the critics miss. He points out Art. II, Sec. 1, Clause 4, which specifies the powers Congress has:
The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.
This clause gives Congress, not the state legislatures, the power to set the time of choosing the electors. Congress has decided to avail itself of this power and has passed a federal law decreeing that Election Day is the Tuesday immediately following the first Monday in November, nationwide. No state legislatures have tried to overrule this, although many states allow ballots to be turned in before Election Day as a convenience for the voters. But on Election Day at the stroke of midnight, the die is cast. It's all over but the counting.
Seligman argues that because Congress has set Election Day in stone, attempts by state legislatures to choose the electors after Election Day would be in blatant violation of Art. II, Sec. 1. So maybe the legislatures do have the power to appoint electors, but only if they do it on Election Day, not afterwards. Once Election Day has come and gone, that ship has sailed.
There is one potential escape hatch for the legislatures, though. The Election Day law says that if the state failed to make a choice on Election Day, the legislature may step in later. That might mean something like a hurricane made voting impossible on Election Day or the result of the election was an exact tie. A possible revision of the Electoral Count Reform Act during a lame-duck session of Congress may well clarify what this means or repeal the provision altogether.
Of course, the reality is the Constitution means what any five Supreme Court justices say it means, the text be damned. Donald Trump gave it a shot in 2020. He failed, but some state legislatures might give it a try in 2024. You never know. The main thing that might restrain them is potential voter outrage, expressed in the 2026 legislative elections, but with gerrymandering as it is, that might not be enough. And of course, the Supreme Court justices also read the newspapers. If they were to rule that state legislatures can override the will of the voters and do it after Election Day in violation of Art. II Sec. 1 to boot, the reputation of the Court would drop to about zero and presidents and Congresses would feel justified in ignoring its rulings ever after. It would precipitate a crisis that would take us deep into uncharted territory. (V)