This floated by in the NYTimes this AM:

In 1887, the Electoral Count Act became law, setting out procedures for
the counting and certifying of electoral votes in the states and in
Congress.

But the law contains numerous ambiguities and poorly drafted
provisions. For instance, it permits a state legislature to appoint
electors on its own, regardless of how the state�s own citizens voted,
if the state �failed to make a choice� on Election Day.

How is that constitutional? Doesn't the Constitution say:

....Clause 2. Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors...

How can the ECA overrule a State's constitutional prerogative to select its electors however it pleases?

/Bernie\
--
Bernie Cosell Fantasy Farm Fibers
bernie@fantasyfarm.com Pearisburg, VA
--> Too many people, too few sheep <--

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According to Bernie Cosell <bernie@fantasyfarm.com>:

How is that constitutional? Doesn't the Constitution say:

....Clause 2. Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors...

How can the ECA overrule a State's constitutional prerogative to select its >electors however it pleases?

Art IV, Sec 4 guarantees to each state "a Republican Form of Government."
(in the classic sense of a republic, not the modern sense of a follower
of the former guy.)

You could make an argument that letting people vote and then ignoring
the vote result was not consistent with a republican form of government.

--
Regards,
John Levine, johnl@taugh.com, Primary Perpetrator of "The Internet for Dummies",
Please consider the environment before reading this e-mail. https://jl.ly

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On 10/3/2021 9:39 AM, Bernie Cosell wrote:

This floated by in the NYTimes this AM:

In 1887, the Electoral Count Act became law, setting out procedures for
the counting and certifying of electoral votes in the states and in
Congress.

But the law contains numerous ambiguities and poorly drafted
provisions. For instance, it permits a state legislature to appoint
electors on its own, regardless of how the state’s own citizens voted,
if the state “failed to make a choice” on Election Day.

How is that constitutional? Doesn't the Constitution say:

....Clause 2. Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors...

How can the ECA overrule a State's constitutional prerogative to select its electors however it pleases?

Congress cannot overrule a state's prerogative to select its electors as
it pleases. But Congress also has the ability to decide what to do if
more than one slate of electors claims to be the official ones from a
given state. The 1887 law set forth a procedure for this, including the
"safe harbor" rule: if the state legislature certifies its electoral
votes by a given date, Congress has promised to abide by that certification.


This question arose during the argument over Florida's election in 2000.
A couple of states where the election had gone to Gore but the GOP
controlled the legislature had threatened to use their ability to choose electors and overrule the popular vote. Only it turned out that there
were several states where Bush had won the popular vote but the
legislature had a Democratic majority, and those states had more
electoral votes than the Republican-legislature states.

That, I guess, is the only real limit on a states' right to choose
electors as it pleases: if state A ignores the tradition (of letting the popular vote choose the state's electors), then states B & C might do
the same in the other direction.

And, of course, the threat of losing their seats at the next election.
In states with the Initiative, the voters might amend the state's
constitution to require the legislature to follow the popular vote. Or
even recall some of the legislators who voted for the less-popular
candidate.



--
I do so have a memory. It's backed up on DVD... somewhere...

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You need to go beyond the constitution and federal law.

States probably have a law determining how the electors are selected.
Example in Arizona

Extract from Arizona Revised Statutes Title 16. Elections and Electors § 16-212.

After the secretary of state issues the statewide canvass containing the results of a presidential election, the presidential electors of this
state shall cast their electoral college votes for the candidate for
president and the candidate for vice president who jointly received the
highest number of votes in this state as prescribed in the canvass.

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On 10/3/2021 12:39 PM, Bernie Cosell wrote:

This floated by in the NYTimes this AM:

In 1887, the Electoral Count Act became law, setting out procedures for
the counting and certifying of electoral votes in the states and in
Congress.

But the law contains numerous ambiguities and poorly drafted
provisions. For instance, it permits a state legislature to appoint
electors on its own, regardless of how the state’s own citizens voted,
if the state “failed to make a choice” on Election Day.

How is that constitutional? Doesn't the Constitution say:

....Clause 2. Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors...

How can the ECA overrule a State's constitutional prerogative to select its electors however it pleases?

/Bernie\

"permits a state legislature to appoint electors on its own"

"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors"

Maybe I'm totally dense but I'm not seeing any conflict there. If the "legislature [appoints] electors on its own", is that *not*
"[appointing] in such Manner as the Legislature thereof may direct[?]"
From what I understand, the state legislature can simply vote amongst themselves as to who to appoint as electors, they can put it to a
popular vote, they could even roll a die or flip a coin and all of these
would be "[appointing] in such Manner as the Legislature thereof may
direct[.]" And the law seems to simply codify that very fact with the
"permits" part.

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On Sun, 03 Oct 2021 12:13:12 -0700, John Levine wrote:

You could make an argument that letting people vote and then ignoring
the vote result was not consistent with a republican form of government.

Certainly consistent with the British form of government you guys decided against though ...

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