Jane Mayer Mangles the Constitution

T he latest Jane Mayer column in The New Yorker is out, and even by Mayer’s standards, it is a scattershot stew of every last thing she could think of to say about any Republican or conservative dating back to the 1940s. You can almost see her following the strings from one Post-It Note on her wall to the next. What is particularly appalling about this column is how it misrepresents the longstanding judicial doctrine that the electors clause of Article II of the Constitution means what it says.

Article II and Who Makes the Rules

Mayer’s bête noir is the “Independent Legislature Doctrine,” which, first of all, is a title that has never once been used in a judicial opinion, and is not used in the legal brief she complains about in the article. But sometimes, the Capital Letters Doctrine of opinion-writing must be deployed. Mayer introduces the doctrine by tracing it to Chief Justice William Rehnquist’s concurring opinion in Bush v. Gore:

Few people noticed at the time, but in . . . Bush v. Gore, [Rehnquist], along with Antonin Scalia and Clarence Thomas, hinted at a radical reading of the Constitution that, two decades later, undergirds many of the court challenges on behalf of Trump. In a concurring opinion, the Justices argued that state legislatures have the plenary power to run elections and can even pass laws giving themselves the right to appoint electors.

Three problems are apparent already. One, Rehnquist did not “hint” at the argument that state legislatures have plenary power to decide how electors are chosen; that was the centerpiece of the opinion, which argued that the federal Constitution’s delegation of power to state legislatures could not be overruled by state courts or state constitutions. There was nothing stealthy about it.

Two, it is not true that “few people noticed at the time”; among the sorts of people who read Supreme Court opinions, Bush v. Gore was the most intensely debated opinion of the past half century with the possible exceptions only of the abortion cases. Mayer’s implication that this was some carefully designed time-bomb nobody noticed at the time is just wrong.

Three, the power of state legislatures over the appointment of electors was not a new, “radical reading” of the Constitution; it derives directly from the Constitution’s text and was accepted by the Supreme Court as far back as 1892. Article II, as even Mayer later concedes, “gives states the authority to choose their Presidential electors ‘in such Manner as the Legislature thereof may direct.’” In the Founding era, the electors in many states were chosen directly by the state legislature, under the same constitutional text we have today. That continued in South Carolina all the way to the Civil War, and was last done in Colorado in 1876, when the state was admitted to the Union too late in the year (August 1) to organize a popular vote. The move to a popular vote was due to popular pressure and is not dictated by the Constitution.

A popular vote typically gives the electors to the statewide plurality winner, but not always. In 1892, in political conditions much like that of today, Michigan Democrats tried a new innovation: awarding electors in their Republican state by congressional district to ensure some electors for Grover Cleveland. The Supreme Court, in McPherson v. Blacker, approved of this scheme — still used today in Maine and Nebraska — on the grounds that the state legislature gets to decide how electors are chosen.

McPherson is not a “radical” decision; it was a unanimous opinion written by Chief Justice Melville Fuller, and it is still good law. McPherson’s reading of Article II was not something that Rehnquist unearthed for the first time in the concurrence in Bush v. Gore, and which only the Court’s conservatives treated as a serious modern reading of the Constitution. Just eight days earlier, in Bush v. Palm Beach County Canvassing Board, the Court unanimously vacated an earlier recount decision by the Florida Supreme Court, quoting from McPherson’s discussion of how the legislative power over selection of electors could not be circumscribed, and concluding that the failure of the Florida court to consider McPherson justified vacating its decision:

There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, § 1, cl. 2, “circumscribe the legislative power.”

Here is how Justice Elena Kagan, writing for a unanimous Court in 2020 in Chiafalo v. Washington, described state power over the choice of electors under McPherson:

Article II, §1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint. . . . [E]ach State may appoint electors “in such Manner as the Legislature thereof may direct.” Art. II, §1, cl. 2 . . .This Court has described that clause as “conveying the broadest power of determination” over who becomes an elector. McPherson v. Blacker . . . And the power to appoint an elector (in any manner) includes power to condition his appointment — that is, to say what the elector must do for the appointment to take effect. A State can require, for example, that an elector live in the State or qualify as a regular voter during the relevant time period. Or more substantively, a State can insist . . . that the elector pledge to cast his Electoral College ballot for his party’s presidential nominee, thus tracking the State’s popular vote.

Kagan, of course, is no right-wing conspirator. Mayer makes no effort whatsoever either to explain this history to her readers or to offer any competing view of what the text of Article II might possibly mean, other than what it says.

Changing the Rules after the Fact

Now: There is a radical reading of Article II, which is that a state can choose a method for selecting electors — a popular vote on Election Day — and then turn around after getting the results and decide that it does not like them and will reassign the selection to the state legislature. But the existence of that argument is not proof that it is radical or dangerous to read Article II to mean what it says. It just shows that any good argument can be converted to a bad one by taking it too far.

Federal law has, since the advent of the telegraph in the mid 1840s, required that states choose electors by a single Election Day that shall be uniform throughout the United States. Article II explicitly gives Congress the power to establish a uniform Election Day, which ties into the constitutional requirement of a uniform date for the electors to cast their votes: “The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.” A state that decided after Election Day to change its method of choosing electors would violate federal law adopted pursuant to Article II. For that matter, if a state’s statute provided in advance for a popular vote with a reservation of powers to the state legislature to make a different choice after Election Day, that would also take us onto uncharted constitutional ground.

As a result, when Mayer says that “there may now be enough conservative Justices to agree with Thomas that there are circumstances under which legislatures, not voters, could have the final word in American elections,” she is conflating two very different things. At least eight current justices already agree, as Justice Kagan wrote in Chiafalo, that states can choose electors however they want by legislation passed in advance of the election, so long as the choice is made by Election Day. By contrast, neither Justice Thomas nor any other member of the current Court has endorsed a theory under which a state could hold a popular vote and then let the legislature throw it out later.

That brings us to Mayer’s final claim about the role of the Article II argument in litigation over the 2020 election:

Another version of the Independent Legislature Doctrine argument was . . . mounted in Pennsylvania, by the Honest Elections Project . . . Local Republicans had challenged a state-court ruling that adjusted voting procedures during the pandemic. The Honest Elections Project filed a brief with the U.S. Supreme Court arguing that the Pennsylvania court had usurped the legislature’s authority to oversee elections. The effort didn’t succeed, but Richard Hasen, the election-law professor, regards such arguments as “powder kegs” that threaten American democracy.

Mayer again fails to honestly describe what happened. The Honest Elections brief was filed in October 2020, before the election. The issue in the case was the Pennsylvania supreme court explicitly throwing out deadlines written by the state legislature, purportedly on the basis of the state constitution — a step much more aggressive than Mayer’s anodyne phrase “adjusted voting procedures” would suggest. It thus presented the same issue as in the two Bush cases: the supremacy of state legislatures over state courts in writing rules for presidential elections. The brief had nothing whatsoever to do with changing the rules after a vote; to the contrary, it argued that the Court should take the case before Election Day precisely in order to prevent that sort of thing:

Rather than confront them after the election, and face the prospect of disqualifying ballots, this Court should immediately grant certiorari and issue a decision before Election Day so that voters have the opportunity to vote in accordance with the law The Court’s immediate guidance is urgently needed because voters need to know the ballot deadline before they vote. . . . under the Pennsylvania Supreme Court’s new timeline, there is every likelihood that controversies and contests over contested votes will continue straight through the December 8 deadline . . .

Presenting the Honest Elections brief in the Pennsylvania case as if it supported a post-election change in the rules is a complete inversion of the truth, and one that appears deliberately designed to cast the authors and supporters of the brief in a false light in order to damage their reputations. It speaks well of neither Mayer nor her editors at The New Yorker that they greenlit this.