Law geek note: The inconsistencies in Trump v. Democracy

Ted Cruz has offered to argue Representative Mike Kelly’s case against Pennsylvania in the United States Supreme Court — assuming, of course, that the Court grants cert. What’s astonishing about the filings so far is their complete rejection of the only argument that Trump has for getting state legislatures to select alternative slates of electors. As this has been Trump’s endgame from the start, this rejection seems to signal clearly that the game is up. Cruz is posturing for 2024. Trump is going home.

From the start, many of us have been worried about this endgame strategy. John Heilemann says it was described to him in the summer by Steve Bannon. According to this plan, if key states go against Trump, then state legislatures would assert a “constitutional” power to select a different slate of electors, regardless of the vote in their state.

This power — call it the “legislature superpower theory” — was first suggested by the Supreme Court in a careless passage in Bush v. Gore (2000). After describing how the Constitution gives state legislatures the power to decide how presidential electors — the people who ultimately elect the president—are chosen, the Court wrote:

The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 (“ ‘[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated.’’’)

The passage quoted comes from an 1874 Senate Report. In context, the sentence was asserting something that the Supreme Court had not yet held: that the power of a state legislature — when determining the “manner” by which electors are selected—could not be constrained by the state’s constitution. So, e.g., Colorado has a provision that requires that electors be chosen by a vote of the people. This passage is saying that regardless of the state constitution, the Colorado legislature was free to select whatever “manner” for selecting electors that it wanted.

Call this Superpower (level 1). In his concurring opinion, the Chief Justice called this and raised it: Not only did this superpower mean that state constitutions (and a fortiori, state law) did not constrain state legislatures, but courts, when interpreting state law, had to hew very close to the text for fear of “amending” the law themselves, thereby usurping the power the Constitution gives to the legislature. Call this Superpower (level 2).

That Superpower was important in Bush v. Gore. It could have been important in this election (but didn’t turn out to be). But it’s not yet the extreme superpower that Trumpists were claiming in this election cycle. That Superpower (level 3) is that not only does state law (constitutional or statutory) not constrain state legislatures, and not only do courts have less interpretive power over state presidential election law than usual, but the state legislature’s power to set the “manner” by which electors are chosen is also unconstrained temporally: Specifically when the Court in Bush v. Gore quoted the passage saying “at any time,” it meant, literally, at any time. So on this view, the legislature has the power to select the electors themselves before an election, and the state has the power to select the electors themselves after an election. That power, on this theory, is given to the legislature by the Constitution. Neither state law, nor state judges, nor time itself can constrain it.

I’ve already elsewhere explained why this Superpower (level 3) is batshit crazy (that’s a legal term, meaning flatly wrong). It is wrong first because whatever power the Constitution gives state legislatures, the very same Article of the Constitution gives another critical power to Congress: namely, the power to set the “time” when electors are chosen. Congress’ power trumps state power. So whatever power the states have, they have that power within the constraints set by Congress. Congress exercised its power, setting November 3 as the day on which electors were to be appointed. Which means that any Superpower (level 3) the states believe they have must be exercised consistent with that constraint. Which means, finally, that the state cannot select a slate of electors after November 3. Period. (This argument is only strengthened, as I’ve also argued, by Chiafalo v. Washington. But we can leave that for now.)

Ok, but all this was for the purpose of setting up the foundation for a critique of the Pennsylvania case that Ted Cruz has now volunteered to take up. Because while the Trumpists have been raising the levels on the state legislature’s Superpowers (from 1 to 2 to 3), here’s the opening heading to the Mike Kelly lawsuit:

The power delegated to the Pennsylvania General Assembly by the
U.S. Constitution to determine the manner of holding federal elections
and select presidential electors is constrained by restrictions imposed
by the Pennsylvania Constitution

So this brief begins by rejecting the only legislature Superpower ever to receive the votes of a majority of the Court — Superpower (level 1). “State legislatures” are not some demi-god in the constitutional universe, according to this brief. They are ordinary governmental actors like anyone else.

I certainly reject Superpower (level 3), for the reasons I’ve described. I would also reject Superpower (level 2), if only for judicial constraint-based reasons (no court could ever draw the line between “interpreting” and “amending” without appearing political). I’m not yet sure that I reject Superpower (level 1).

But I’m sure I don’t completely understand why Ted Cruz is essaying to undermine Trump’s legislature superpower theory. Maybe he doesn’t really want him to win?

law professor, activist.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store