Editor's note: This article was corrected to reflect the proper timeline for passage of Electoral Count Reform Act.
Merloe provides strategic advice on democracy and elections to U.S. and international organizations. He is a former director of election integrity programs at the nonpartisan National Democratic Institute for International Affairs.
When Americans vote for a presidential candidate, they are actually voting for a slate of people to represent their state in the Electoral College. What few Americans realize is that their state legislature could legally exercise the power to select the electors without holding a popular vote – or it could even ignore the people’s choice. Those are dangerous possibilities in this time of toxic polarization and empowered election deniers.
The Constitution’s electors clause (within Article II, Section 1) states: “Each state shall appoint, in such a manner as the Legislature thereof may direct a [specific] Number of Electors.” The clause does not specify that citizens have the right to choose the electors by a vote. In the earliest presidential elections, legislatures picked the electors without holding a popular vote. By 1864, every state required the people's vote for electors, though that could change. The Supreme Court reminded us in its 1990 Bush v. Gore decision that there is no federal right for citizens to vote for president unless the state legislature grants it, and that power may be taken back.
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Beware of new state laws concerning presidential electors
It is difficult to envision a state legislature eliminating presidential voting. The uproar from citizens would be formidable to say the least. Nonetheless, we should be wary of possible state laws providing that, where there is an election crisis – real or manufactured – the legislature would determine the electors or electors would be required to vote for the legislature’s choice of candidates.
Those who promote the independent state legislature theory would have us believe that legislatures may snatch back the power to pick electors at any time. Fortunately, there may well be legal constraints preventing such egregious actions.
In late 2022, Congress passed the Electoral Count Reform Act, which among other things provides that the governor or other designated official shall issue a certificate under laws of the state “enacted prior to election day” designating who are to be the state’s electors. That should prevent legislatures from acting arbitrarily to designate electors despite the outcome of the popular vote. Ardent ISL proponents argue against the requirement, saying that the electors clause does not empower Congress to limit legislatures. However, existing Supreme Court decisions should be interpreted as curtailing at least the most egregious arbitrary actions.
The Supreme Court, in its 2023 Moore v. Harper decision, rejected the ISL theory concerning the Constitution’s elections clause (Article I, Section 4) by confirming that state legislatures have the power to prescribe the time, place and manner of holding federal elections subject to Congress providing otherwise, and they are constrained by their state constitutions, including state judicial review. In Moore, the court noted an earlier decision concerning the electors clause (McPherson v, Blacker). It cited Chief Justice Melville Fuller’s opinion for the court in that case, which addressed the state legislature’s power to designate electors: “[t]he legislative power is the supreme authority except as limited by the constitution of the State.”
Enshrine the popular vote in state constitutions
That reference gives clear guidance: Ensure that the popular vote for the state’s electors is enshrined in the state’s constitution. If it is not there already, passing a constitutional amendment to that effect is in order. Plus, any law and any new bill affecting the designation of a state’s electors or their voting discretion should be carefully scrutinized to protect the popular vote. These steps should be added to efforts to pass and protect state voting rights laws.
There is a substantial risk of setting aside the people's vote in any state where the certification of the presidential election is not finalized by Dec. 10, as required by ECRA’s provisions. Though there is no penalty for failure to meet that date, the gray area between it and Jan. 6, when Congress settles the outcome of the presidential election, is a twilight zone for possibly nightmarish developments.
Besides clear election administration deadlines and expedited judicial processes to resolve electoral challenges, states must be able to timely and effectively require election boards to complete results certification at county and state levels by Dec. 10, or the twilight zone begins.
In 2020, partisan election officials initially refused to certify Detroit’s results, holding up Michigan’s presidential election. In 2022, four states (Arizona, Nevada, New Mexico and Pennsylvania) saw county officials refuse to certify results, though most of them relented. Those instances illustrate the risk, as the Dec. 10 deadline approaches, of an electoral crisis and the possibility of one or more state legislatures designating electors despite the voters’ choice. Such events would also feed the disinformation mill and subvert faith in elections.
An additional risk was highlighted in a recent New York Times op-ed by constitutional scholars Lawrence Lessig and Matthew Seligman. They warn that a state legislature could pass a law giving it the power to bind the state’s certified electors to vote as the legislature instructs them – irrespective of the popular vote. That possibility is based on the Supreme Court’s 2020 decision in Chiafalo v Washington, where the court held that state law may enforce an elector’s pledge to vote for the candidate of the party that put them on its slate of electors. The authors interpret this as creating the possibility that a legislature could completely eliminate the elector’s voting discretion, or provide a default for honoring the popular vote unless the legislature orders otherwise, perhaps where there are unresolved charges of fraud.
The age-old practice of ballot-box snatching (stealing or destroying ballots from opponents' strongholds) is well known, but the people’s vote can be snatched in other ways. Vigilance is required to safeguard the vote. Its essential role in determining the members of the Electoral College requires strong protection.
