![]() Once that date passed, the determinative popular votes had all been cast, and therefore the legislature’s authority to change the state’s manner of appointing electors in 2020 passed as well. In other words, under the constitutional timing provision as implemented by federal law, the absolute last day a state legislature could have decided to appoint the state’s presidential electors for this election was November 3, 2020. But Congress’s enactment of a uniform national Election Day under its own constitutional authority - which supersedes any contrary state actions - prohibits the choice of electors from being made based on elections held or laws passed after Election Day. ![]() Although every state has chosen its electors by popular vote for more than a century, most constitutional experts agree that, under the legislature’s authority to choose the “manner” of appointing electors, a legislature could theoretically decide before Election Day to cancel the popular vote for presidential electors and instead appoint them directly. Proponents of the legislative-appointment theory read too much into the first constitutional provision and forget about the second. Second, the Constitution gives Congress the power to decide when the electors are chosen, which Congress has done by enacting a federal law designating the Tuesday after the first Monday in November - Election Day. First, the Constitution says that each state’s legislature has the authority to determine that state’s manner of choosing its electors. The Constitution has two main provisions that govern the selection of presidential electors. For example, under the proposal that has been floated this week, a legislature in a state where Vice President Biden won the popular vote would pass some sort of law or resolution appointing members of the Electoral College who would cast their votes for President Trump. So for a state legislature to overrule the popular vote would really mean for the state legislature to appoint the state’s presidential electors, in defiance of the results of the state’s popular vote. Rather, under the Electoral College system, the voters choose presidential electors (the members of the Electoral college) from each state, and the electors in turn cast the official votes for president. This is not a close case.īy way of background, it’s important to remember that voters do not directly elect the president. To be absolutely clear: A state legislature cannot overrule the state’s popular vote for president. But 2020 being what it is, the theory has made its way into the pro-Trump social media ecosystem, cloaked in a thin veneer of legalese. This proposition is so radically un-American - so contrary to our basic national principles - that in a normal environment, it might simply be laughed off. Adav has appeared on broadcasts such as The Rachel Maddow Show, Anderson Cooper 360, NBC Nightly News, and National Public Radio's Morning Edition, and he has been cited in publications nationwide, including the New York Times, Washington Post, USA Today, Politico, Slate, and Reuters.One of the very last-ditch efforts Trump proponents have floated since Election Day has been that state legislatures should simply overrule the results of the presidential election in their states. In addition to his litigation and policy practice, Adav regularly provides expert analysis for television, radio, and print journalism. He is admitted to the bars of New York and the District of Columbia. Adav has also served as a Special Assistant United States Attorney for the District of Columbia.Īdav is a graduate of New York University School of Law (J.D.), Georgetown University (M.A.L.S.) and the University of Pennsylvania (B.A.). From 2007 to 2012, as acting assistant general counsel and an attorney in the FEC’s Litigation Division, he litigated campaign finance matters, including the landmark cases of Citizens United v. From 2013 to 2017, as associate general counsel for policy, Adav oversaw all legal recommendations regarding the FEC’s regulations and advisory opinions. Prior to joining CLC, Adav served for more than 10 years in several capacities within the Office of General Counsel of the Federal Election Commission. ![]() Adav has conducted dozens of constitutional cases in district courts, courts of appeals and the United States Supreme Court. ![]()
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