![]() ![]() Like Eastman, then-DOJ official Jeffrey Clark cited the McPherson decision in a now-infamous letter that he pressed Justice Department leaders to issue on the cusp of Jan. That 1892 decision paved the way for a Michigan law that permitted the appointment of electors by congressional district, and it emphasized the power of legislatures to dictate the way presidential electors are chosen.Įastman has repeatedly cited that ruling as evidence that state legislatures could simply ignore state court decisions they disliked regarding the appointment of electors, and he has reupped those arguments as he seeks to hold onto his California law license this month. Blacker - a ruling cited repeatedly by Trump’s allies as they sought to justify their efforts to supplant Biden’s electors with their own. ![]() The clearest link between Tuesday’s decision and the Trump election gambit was in the references to a 140-year-old Supreme Court decision in McPherson v. ![]() “The operative constitutional language in the two clauses is essentially identical,” said Michael Luttig, a former conservative federal appellate judge who advised Pence to reject those alternative slate of electors on Jan. The electors clause similarly says each state shall appoint presidential electors “in such manner as the Legislature thereof may direct.” The elections clause reads that the “times, places and manner” of electing senators and representatives “shall be prescribed in each State by the Legislature thereof,” while also granting explicit powers to Congress to do the same. The elections clause and electors clause contain very similar language. “Today’s ruling makes clear, for example, that an elected state legislature cannot cut the people of the state out of the loop of picking presidential elections if the state constitution requires that electors to the electoral college be popularly selected,” argued Vikram Amar, a law professor at the University of Illinois, on a call organized by the group Protect Democracy and others who opposed the independent state legislature theory. But in soundly rejecting the independent state legislature theory, the implications were clear: “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” Roberts wrote. Tuesday’s decision contained just glancing discussion of the electors clause in its majority opinion, which was joined by liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson and conservatives Brett Kavanaugh and Amy Coney Barrett. No state legislatures embraced Eastman’s calls, and the effort collapsed when then-Vice President Mike Pence refused a simultaneous pressure campaign to single-handedly postpone the counting of electoral votes. ![]() Eastman and other Trump allies argued that state legislatures could determine unilaterally that Trump was the rightful winner, appointing their own electors to be counted on Jan. When Trump tried to subvert the 2020 election, his allies relied, in part, on a similarly fringe interpretation of the Constitution’s electors clause, which permits state legislatures to determine the method for appointing presidential electors. That decision cuts the already-wobbly legal legs out from under Trump’s last-ditch efforts to remain in power. Though some on the right have interpreted the clause as giving state legislatures total authority to write and rewrite election procedures, without any input from governors or state courts, the Supreme Court rejected that notion. Constitution’s elections clause, which says that state legislatures can set rules for congressional elections in their states. Tuesday’s opinion primarily revolves around an interpretation of the U.S. ![]()
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