New Jersey Election Law?
Robert Justin Lipkin
RJLipkin at AOL.COM
Thu Oct 3 14:54:23 PDT 2002
In a message dated Thu, 3 Oct 2002 3:13:20 AM Eastern Standard Time,
isomin at FAS.HARVARD.EDU writes:
"If the Constitution was intended to refer to the general "legal authority of
the state," it could have referred to it as, well, "the state," rather than
specifying the legislature."
I have always found arguments like Ilya's perplexing. Article II, Section
1.  says "Each State shall appoint, in such Manner as the Legislature
thereof may direct . . ." It could have said "The Legislature [or the
Legislature of the State, or the State's Legislature) shall appoint . . ." if
the purpose was to preclude any role for other branches of state government
in the selection process; it does not. Indeed, one possible reading of the
language is that the full normative responsibility for appointing electors is
the State's, and the Legislature is the constitutionally chosen means to
express this authority. This does not entail, in my reading, that the
constitutionally chosen means trumps all other state agencies from having a
role in the selection, especially in crises. For example, suppose all the
members of a state legislature lost their lives in an airplane accident, and
no replacements were possible due to time constraints. Does that necessarily
disable that State from appointing the electors through an alternative means?
I do not think so. If I'm I right, then the Legislature's role is
instrumental and dependent on the Constitution's designating the State as the
ultimate appointor. Of course, nothing in this argument suggests that the
Legislature is not the constitutionally designated vehicle for appointing
electors in normal politics.
Widener University School of Law
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