Another Way To Elect A President: Can A State Legislature Overrule The Voters? (Part 4)

The Mechanisms of Elector Selection

The podcast discusses the potential complications arising during the selection of presidential electors, especially in closely contested elections. It highlights the possibility for state legislatures to attempt to select multiple slates of electors, even after a presumptive slate has been established based on popular vote. This scenario is made plausible due to legal ambiguities within existing statutes, particularly referencing 3 U.S. § 2, which outlines conditions under which legislatures can appoint electors if no choice has been made on election day. The debate centers around whether the law should provide this power to the legislature and what implications this flexibility has for the integrity of the electoral process.

Historical Context of Elector Selection

The episode provides a historical overview of how the U.S. established a specific day for electors to be chosen and the evolution of election procedures. Initially, states had wider leeway in selecting electors, but Congress eventually mandated a single day in 1845 to streamline the election process and mitigate the risks of voter fraud during the selection period. Various historical examples, including the practices in different states like Massachusetts and New Hampshire, illustrate that the adoption of uniformity was not straightforward. Overall, the conversation ties these historical practices to contemporary challenges surrounding elector selection and state authority.

Modern Implications of 3 U.S. § 2

The podcast delves into the modern interpretations of 3 U.S. § 2, exploring how its language could be invoked in cases of election disputes. Legal scholars discuss how states might assert that an election 'failed' due to alleged irregularities or fraud, potentially allowing them to appoint their slate of electors post-election. An important consideration is whether state legislatures have the authority to take such actions, especially without prior state law stipulating conditions for such a response. This raises critical questions regarding the boundaries of legislative power and the constitutional rights of voters to have their ballots counted.

Potential Scenarios and Legal Challenges

The episode outlines hypothetical scenarios, particularly focusing on Florida, where a governor might declare election results inconclusive amidst allegations of fraud. In this situation, state lawmakers could be called into a special session to select a slate of electors after invoking 3 U.S. § 2. The conversation stresses the lack of historical precedent for such actions, noting that all previously cited instances of legislatures stepping in occurred under very narrow and legally defined conditions. The discussion emphasizes the potential for complex legal battles, reflecting on how evolving societal situations and allegations of interference may influence future electoral processes.

Another Way, by Lawrence Lessig

Another Way To Elect A President: Can A State Legislature Overrule The Voters? (Part 4)

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Quick takeaways

Deep dives

The Mechanisms of Elector Selection

Historical Context of Elector Selection

Modern Implications of 3 U.S. § 2

Potential Scenarios and Legal Challenges

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