Constitutionality of 3 usc 15

[John Duffy]

I thank Professor Friedman for his thoughtful response, but I am not certain that I understand the response.

If a state legislature selected electors on the first Tuesday after the first Monday in November, Congress would have no power to reject those electors, even if the state executive certified another slate of electors.  Yet section 15 would purport to recognize the state executive's electors in the event of congressional deadlock.  That is only the clearest of the many applications of section 15 that cannot be justified on the basis of Congress's power to control timing.

Now I certainly agree that the state legislature must comply with the timing scheme in 3 usc 2.  If the legislature does not comply with that timing rule, then its slate of electors must be rejected on the basis of 3 usc 2, and then section 15's presumption is unnecessary.  But even if the legislature has complied with that timing rule, section 15 still gives presumptive validity to the state executive's certification.  What authority does Congress have to impose that rule?


"John C. Eastman" wrote:

>
> "Richard D. Friedman" wrote:
>
>> In response to John Fitzgerald Duffy's argument that 3 USC 15 is
>> unconstitutional in giving priority to electors chosen pursuant to court
>> order over those chosen by the legislature:
>>
>> Article II, Sec. 4 says that the Congress may determine the time of
>> choosing the electors, and the uniform date on which they shall give their
>> votes.  3 USC sec. 1 says the time of choosing shall be the first Tuesday
>> after the first Monday in November.  So there's no authorization for a
>> post-election choice by the legislature, except in accordance with 3 USC
>> sec. 2, which allows the legislature to provide an alternative manner of
>> appointment if the state has failed to make a choice on election day.  But
>> presumably this section is meant to fit with secs. 5 and 15; fairly read
>> together, I think these sections do not allow the legislature to determine
>> that no choice has been made if the election is held on the prescribed
>> Tuesday and the previously enacted provision, by judicial means or
>> otherwise, for final resolution of a contest reaches a conclusion 6 or more
>> days before the electors meet.  That's the procedure that's going on right now.
>>
>> Rich Friedman
>
>
> 3 U.S.C. § 2 provides:
>
> Whenever any State has held an election for the purpose of
> choosing electors, and has failed to make a choice on the day
> prescribed by law, the electors may be appointed on a subsequent
> day in such a manner as the legislature of such State may direct.
>
> When the Florida Supreme Court enjoined the Secretary of State from certifying electors on the day prescribed by law, Florida failed to make a choice on the day prescribed by law.  The Constitutional authority under Art. II, sec. 1, which the Supreme Court has noted is plenary, therefore is back in the Florida legislature's court.  Congress's power is only to determine the time for which electors are chosen, not the manner.  Sec. 2 allows the legislature to choose electors at a subsequent time if they were not chosen on the day Congress specified.
> -- John Eastman
>

--
John F. 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

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