Wisconsin district court incorrectly describes scope of the Presidential Electors Clause
A federal judge in Trump v. Wisconsin Election Commission recently rejected the President Donald Trump’s attempt to declare Wisconsin’s 2020 presidential unconstitutional. While the court got many things right, I want to focus on one important legal error in Part II.A of the opinion—the scope of the Presidential Electors Clause, and, specifically, the scope of the state legislature’s power to direct the “manner” of appointing electors.
It’s worth noting at the outset that the district court includes in the alternative Part II.B, if the scope of the Presidential Electors Clause is broader than the court describes. But I want to highlight why Part II.A is incorrect.
Here’s the crucial passages from the court on this issue (all quotations include some light editing):
Plaintiff contends defendants have violated the Electors Clause by failing to appoint the state’s presidential electors in the “Manner” directed by the Wisconsin Legislature. By this, plaintiff means that he has raised issues with the WEC’s guidance on three issues related to the administration of the election. This argument confuses and conflates the “Manner” of appointing presidential electors—popular election—with underlying rules of election administration. As used in the Electors Clause, the word “Manner” refers to the “[f]orm” or “method” of selection of the Presidential Electors. Chiafalo, 140 S. Ct. at 2330 (Thomas, J., concurring) (citations omitted). It “requires state legislatures merely to set the approach for selecting Presidential electors.” Id. Put another way, it refers simply to “the mode of appointing electors—consistent with the plain meaning of the term.” Id.; see also McPherson v. Blacker (1892) (“It has been said that the word ‘appoint’ is not the most appropriate word to describe the result of a popular election. Perhaps not; but it is sufficiently comprehensive to cover that mode…”).
The approach, form, method, or mode the Wisconsin Legislature has set for appointing Presidential electors is by “general ballot at the general election.” Wis. Stat. §8.25(1). There is no dispute that this is precisely how Wisconsin election officials, including all the defendants, determined the appointment of Wisconsin’s Presidential Electors in the latest election. They used “general ballot[s] at the general election for choosing the president and vice president of the United States” and treated a “vote for the president and vice president nominations of any party is a vote for the electors of the nominees.” Absent proof that defendants failed to follow this “Manner” of determining the state’s Presidential Electors, plaintiff has not and cannot show a violation of the Electors Clause.
Plaintiff’s complaints about the WEC’s guidance on indefinitely confined voters, the use of absentee ballot drop boxes, and corrections to witness addresses accompanying absentee ballots are not challenges to the “Manner” of Wisconsin’s appointment of Presidential Electors; they are disagreements over election administration. Indeed, the existence of these (or other) disagreements in the implementation of a large election is hardly surprising, especially one conducted statewide and involving more than 3.2 million votes. But issues of mere administration of a general election do not mean there has not been a “general ballot” at a “general election.” Plaintiff’s conflation of these potential nonconformities with Constitutional violations is contrary to the plain meaning of the Electors Clause. If plaintiff’s reading of “Manner” was correct, any disappointed loser in a Presidential election, able to hire a team of clever lawyers, could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every Presidential election into a federal court lawsuit over the Electors Clause. Such an expansive reading of “Manner” is thus contrary both to the plain meaning of the Constitutional text and common sense.
Oddly, the Court relies on Justice Clarence Thomas’s concurring opinion in Chiafalo v. Washington. And this is the part of the concurring opinion where Justice Neil Gorsuch, the only other justice who joined part of Justice Thomas’s approach, did not join.
Here’s what Justice Elena Kagan (for eight justices) had to say about the clause:
Article II, § 1’s appointments power gives the States far-reaching authority over presidential electors, absent some other constitutional constraint. As noted earlier, each 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 (1892). 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.
Right off the top, the majority in Chiafalo has a much more expansive view of the “manner” power than Justice Thomas’s view—and the Wisconsin district court. It is “far-reaching,” it is "the broadest power,” it “includes the power to condition” an elector’s appointment. It is more, in other words, than the “form” and “method.”
But it’s also worth working backwards for a moment. The court describes these things as “issues of mere administration of a general election.” Where is the State authority—legislative or otherwise—to develop issues of “mere administration” of a federal election?
The constitutional allocation of power over elections
Under the majority view—the view of, among others, Justice Joseph Story, and of a majority of the Court in U.S. Term Limits v. Thornton and Chiafalo—the Constitution sets forth a framework to empower States to regulate federal elections. Before the existence of the Constitution, there was no power anywhere to regulate federal elections because, well, there was no federal government. But the creation of federal elected offices under the Constitution meant that the allocation of authority had to lodge somewhere. The Constitution parcels how that power for both congressional and presidential elections. It sets out rules about who is qualified to be elected to those offices; who is eligible to vote for those offices; and who gets to regulate the times, the places, and the manner of holding those elections.
Under this majority view, that is the exclusive source of the authority over the election of all federal offices—some provision of the federal Constitution.
Where, then, does the power over “issues of mere administration of a general [federal] election” come from?
If it does not come from the Constitution, we’ve already reached a problem. The minority position—the losing position that Justice Thomas articulated in both Term Limits and Chiafalo—is that such power is inherent in the States as understood through the Tenth Amendment.
One could, then, accept that “manner” has a very narrow definition and that residual authority over elections is inherent in the States under the Tenth Amendment. But that’s been the position rejected by the Supreme Court and, I think, is not the best way to think about how the Constitution structures the allocation of power over federal elections.
The intratextual use of the word “manner”
There’s another intratextual problem, too. The Constitution grants State legislatures the power to direct the “manner” of appointing electors in the Presidential Electors Clause, and it also grants them the power over the “manner” of holding congressional elections in the Elections Clause. There is, as one commenter put it, “little reason” to believe that the scope of power is substantially different. Professor Michael Morley has likewise recognized that these two clauses have been construed “in pari materia.”
One of the most famous articulations of the scope of the “manner” of holding congressional elections came from James Madison during the ratification debates:
Whether the electors should vote by ballot or viva voce, should assemble at this place or that place; should be divided into districts or all meet at one place, should all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures. and might materially affect the appointments.
The Supreme Court in Smiley v. Holm adopted a similarly broad understanding:
[T]hese comprehensive words embrace authority to provide a complete code for congressional elections, not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved
In short, the more widely-recognized scope of the Elections Clause extends quite broadly. Indeed, it extends broadly precisely because Congress must have the power to supersede state laws in this area—a narrow conception of “manner” would not work. Note how Justice Antonin Scalia described the scope of the power in Arizona v. Inter Tribal Council of Arizona:
The Clause’s substantive scope is broad. “Times, Places, and Manner,” we have written, are “comprehensive words,” which “embrace authority to provide a complete code for congressional elections,” including, as relevant here and as petitioners do not contest, regulations relating to “registration.” Smiley v. Holm (1932) ; see also Roudebush v. Hartke (1972) (recounts); United States v. Classic (1941) (primaries). In practice, the Clause functions as “a default provision; it invests the States with responsibility for the mechanics of congressional elections, but only so far as Congress declines to preempt state legislative choices.” Foster v. Love (1997) (citation omitted). The power of Congress over the “Times, Places and Manner” of congressional elections “is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exercised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.” Ex parte Siebold (1880).
A broad conception of “manner” does not risk indefinite litigation after each election
The district court creates a worrisome concern of the Presidential Electors Clause included a broad scope of the power to define the “manner” of appointing electors: “[A]ny disappointed loser in a Presidential election, able to hire a team of clever lawyers, could flag claimed deviations from the election rules and cast doubt on the election results. This would risk turning every Presidential election into a federal court lawsuit over the Electors Clause.”
That’s simply not the case. The district court conflates the scope of the State legislature’s authority under the Presidential Electors Clause (which is broad) with those circumstances in which deviations from it might rise to the level of running afoul of the so-called “independent state legislature doctrine.” That is, part of Mr. Trump’s argument was that the administration of Wisconsin rules was inconsistent with the legislative scheme in such a way as to call into doubt whether the “legislature” of the state actually created the rules.
Never mind that Part II.B of the opinion notes that the election did conform with legislative rules—albeit some administrative delegations that allowed the Wisconsin Election Commission to apply the legislature’s statutes.
But it’s also worth emphasizing that even if a party sues, that party may still not win. And that’s certainly the case with the independent state legislature doctrine. Consider how Chief Justice William Rehnquist articulated how federal courts would review a state practice in Bush v. Gore:
Isolated sections of the code may well admit of more than one interpretation, but the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies.
…
What we would do in the present case is precisely parallel [to other cases]: hold that the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II.
…
[The Florida Supreme Court] significantly departed from the statutory framework.
While the independent state legislature doctrine remains controversial—particularly judicial application of it—and while its contours remain underdefined, not every deviation will yield a successful claim. True, a losing candidate could “flag” any deviation it wanted in a federal court. But surely, most of the time, those claims would fail.
If anything, it’s a reason to construe the independent state legislature doctrine narrowly—not to construe the “manner” provision of the Electors Clause narrowly.
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Again, I agree with the underlying result that this case—effectively a request to declare the election unconstitutional and “remand” to the Wisconsin legislature (which is a nonsensical remedy). But this one statement of law, I think, is incorrect, and I hope this post provides the context as to why. If the Seventh Circuit chooses to hear the appeal, it is my hope that it would clarify at least this portion of the opinion.
UPDATE: A district court in Georgia used the same device here, relying on Justice Thomas’s opinion to describe the scope of the “manner” to direct the appointment of presidential electors.