To: Svartalfiar
But how the States select their electors is not based on any State laws, is is, per the US Constitution, determined solely by the State Legislatures.Once the state legislature determines how electors are selected they codify it by passing a law per their States constitution. How else could they do it?
I think its implicit when the Constitution says the state legislators decide how electors are chosen it means they choose consistent with the constitution of their respective states.
Otherwise it means state legislatures arent bound by their state constitutions and theres absolutely no balance of powers.
Not what I think the framers intended.
42 posted on
10/25/2020 10:32:57 PM PDT by
semimojo
To: semimojo
I know that's the argument, but if a state legislature makes a law on how electors will be selected, and that law's signed by the governor, I'm not sure they can just ignore it when it's inconvenient.
That would mean the constitution and the governor really have no power because the legislature can unilaterally dictate state law.
The reality is the legislature would be violating state law and the state constitution but SCOTUS may say that's OK since it's a federal election.
The thing is, is all the Constitution requires for electors is that the method of choosing them is decided by the Legislature - that explicitly is not a law being passed, it's simply them deciding on the method. They could get together and decide to hold their own mini-election for electors, and that would suffice.
The Legislature CAN dictate State law, if it so chooses (has sufficient votes). I'm pretty sure every State has an option for a supermajority vote to override a governor veto, so they certainly are able to pass laws without the governor. As well, some States have an option where the governor must actively sign or veto legislation - laws go into effect within a certain timeframe if the governor does nothing (contrariwise, some States have a pocket veto where if that timeframe falls within the Legislature recessing, the bill fails instead of becoming automatic law). But as I said above, selecting electors doesn't require a law being passed, it isn't a lawmaking function.
Current laws can easily be determined to embody the Legislature's general methods accepted for choosing electors, but in legal principle, a specific law outweighs a general law, and a more recent one is usually more applicable than an older one. So anything the Legislature does for an election is easily a more recent, election-specific course of action, versus the general election rules in place, and would replace them for that specific election only.
In the early days of the Republic, many States did actually choose electors via a legislative vote. Moving to popular votes for the electors took some time, although now every State does currently do so. Likewise, Senators were originally (and should still be!) selected by the State Legislatures - they didn't need approval from the States' governors.
I think its implicit when the Constitution says the state legislators decide how electors are chosen it means they choose consistent with the constitution of their respective states.
Otherwise it means state legislatures arent bound by their state constitutions and theres absolutely no balance of powers.
Except an implicit determination is just that - implicit, which has little to no bearing in law. Without an explicit reference/law/text/something, ten half-decent lawyers could take a section with implicit meaning, and find 15 different reasonings, all that implicitly make sense. Law means what it says - if we accepted that the law has implicit functions, then how can that law be taken at face value to mean what it says? Anyone could interpret a law to mean just about anything. OJ the ham sandwich did it.
Obviously State Legislatures are bound to their own Constitutions, but the US Constitution has, as I mentioned originally, Supremacy. The Constitution does not delegate to the States the authority to determine how the Legislature may choose the method of selecting the electors, it delegates to the State (Legislature) the power to choose the method of selecting electors. The State cannot take that power from their Legislature.
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