Constitutionality of 3 usc 15

[John Duffy]

Chris SCHROEDER wrote:

> 3 USC 15 lays out a procedure for how the congress resolves a case in
> which it receives two sets of electoral votes from a state.  First, the
> Senate retires to its chamber and the two bodies vote separately as to
> which set of accept.  If they disagree, which they presumably would
> here, the statute states that the ballots "certified by the executive of
> the State" (here Governor Jeb Bush) shall be accepted as the votes from
> that state.
>

Isn't this aspect of 3 usc 15 unconstitutional, at least in the case where one competing set of electors is appointed by the legislature?

The statute purports to determine that the electors shall be those persons certified as such by the executive of the state, notwithstanding the state legislature's exclusive power under Article II section 1 to control the manner of appointing electors.  I assume that 3 usc 15 was enacted under Congress's power to enact laws necessary and proper for carrying out its electoral vote counting function.  Most of the statute is unobjectionable on that basis, but not the statute's preference for executive over legislative action.

If two sets of electors are appointed from Florida (one by the legislature and one by the executive acting under court order), those appointed by the legislature are the constitutionally authorized electors.

--
John Fitzgerald Duffy
Associate Professor of Law
William & Mary School of Law
P.O. Box 8795
Williamsburg, VA 23187-8795
phone: 757-221-3819
email: jfduffy at bigfoot.com or jfduff at wm.edu