The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.
US Const. Article I, Section 4, Clause 1 (The Election Clause)
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
US Const. Article II, Section 1, Clause 2 (The Electors Clause)
Last March, Georgia’s chief elections official, the Secretary of State, entered into a settlement agreement with the Democratic Party over the procedure for rejecting absentee ballots in future elections. There has been a lot of chatter among Trump supporters – and Trump himself – that settlement agreement is unconstitutional. It’s not and here’s why.
The complaint about the Georgia settlement agreement is that it unconstitutionally usurps the authority of the state legislature under the Elections Clause and the Electors Clause of the US Constitution. To the extent that any of these folks sincerely believe that argument, it is the result of misunderstanding state law and Constitutional law. A challenge to the legality of the settlement agreement was one of the claims made recently in Wood v. Raffensperger et al.*
Wood, a Fulton County voter, initiated the action in the Northern District of Georgia (a federal court) on November 13, 2020, ten days after the election. On November 17th – two weeks after the election – he filed an emergency motion for a temporary restraining order. Among other things, Wood argues that the settlement agreement is not legal and requests the court to throw out what appears to be millions of Georgia votes that had already been counted.
“On March 6, 2020, the DPG, DSCC, DCCC,** [Georgia Secretary of State] Raffensperger, and the Members of the Georgia State Election Board executed—and filed on the public docket—a ‘Compromise Settlement Agreement and Release’ (Settlement Agreement). As part of the Settlement Agreement, Raffensperger agreed to issue an Official Election Bulletin containing certain procedures for the review of signatures on absentee ballot envelopes by county election officials for the March 24, 2020 Presidential Primary Election and subsequent General Election.”*** The relevant part of the settlement agreement changed the method for rejecting absentee ballots to require a majority of three registrars rather than just one.
Wood’s claim is that the Elections and Electors Clauses give sole authority to the state legislature to set the manner of conducting elections and the settlement agreement, to which the legislature was not a party, was an impermissible encroachment on legislative prerogatives. The argument is simplistic, stemming from an ignorance of the law in which one thinks that his or her personal understanding of a few words in a clause of the Constitution is dispositive of any dispute concerning it. What this specific argument misses here is what the phrase “legislature” refers to in this clause – it includes acts of state law, including the delegation of actions to state officials – and how the Georgia legislature has chosen to arrange decision-making and problem-solving in its elections.
According to the District Court’s order in Wood (at 6): “Secretary of State Raffensperger is ‘the state’s chief election official.’ O.C.G.A. § 21-2-50(b). See also Ga. Op. Att’y Gen. No. 2005-3 (Apr. 15, 2005) (‘Just as a matter of sheer volume and scope, it is clear that under both the Constitution and the laws of the State the Secretary is the state official with the power, duty, and authority to manage the state’s electoral system. No other state official or entity is assigned the range of responsibilities given to the Secretary of State in the area of elections.’).” Here, the court is noting that the Secretary of State has both the constitutional and legal duty to oversee elections in Georgia.
The court continues (at 6-7): “In this role, Raffensperger is required to, among other things, ‘promulgate rules and regulations so as to obtain uniformity in the practices and proceedings of superintendents, registrars, deputy registrars, poll officers, and other officials’ and ‘formulate, adopt, and promulgate such rules and regulations, consistent with law, as will be conducive to the fair, legal, and orderly conduct of primaries and elections.’ O.C.G.A. § 21-3-31(1)-(2).” Here, the court is explaining that as the chief elections officer for Georgia, it is the Secretary of State’s duty under state law to provide rules and regulations for elections.
Wood’s argument that the Elections and Electoral Clauses prohibit the Secretary of State from executing this settlement agreement fails to take into account the broad authority that the Georgia legislature and constitution give to that office in administering elections nor the disruption to orderly elections if the Secretary was prohibited from making an administrative decisions without getting authorization from the legislature each time.
Under the Elections and Electoral Clauses of the Constitution, states and Congress share authority over federal elections. The president is not directly elected by the popular vote, but rather indirectly through the Electoral College. The framers of the Constitution had considered letting Congress appoint the president, but since Montesquieu’s philosophy on separation of powers was so influential with them they opted instead to create a new and separate institution called the Electoral College. From the historical record, it appears that the College was envisioned to operate similarly to a deliberative body like Congress or the Constitutional Conventions which eventually ratified the Constitution. But that never happened in practice. The Electoral College has always – in practice, if not in law – been a rubber stamp of either a state legislative appointment or the popular vote.
Let’s be clear about what is and is not permissible under the Constitution. State legislatures do have the Constitutional authority to appoint Electors without a popular vote. However, they must choose that method before the election day set out in federal law. One clause cannot be understood properly without the other, and the full language of each clause matters as well. State legislatures cannot decide to change the method from popular vote to legislative appointment after election day. Neither state legislators nor the federal courts have any authority to change that.
States have the constitutional authority to set the time, place, and manner of elections, but it is subject to Congress’ authority to regulate that, which it has done by law. Congress has set in law the time for which Electors are appointed; this year that date fell on November 3rd. Because there is no constitutional requirement for a popular vote, any state legislature could choose to directly appoint Electors. However, to do so legally, a state legislature would have had to establish that before November 3rd. All 51 US electoral jurisdictions have legislatively set the manner by which Electors are appointed via a popular vote. It is too late to change that now.
There is a possible exception: where the election “failed.” It has never been tested before, but one would have to stretch credulity to claim that any election failed to take place this year. This was designed for an event like a natural disaster that prevented some portion of a state from being able to conduct the election. Your side losing is not a “failed” election.
To sum up the Georgia case, Wood complained that, among other things, a settlement agreement entered into by the Secretary of State was contrary to statute and abrogated the authority of the state legislature under the Elections Clause. Court precedent defines legislature in this clause broadly. Georgia state law delegates to the Secretary of State the ability to make decisions, rules, and regulations related to the effective and efficient functioning of elections. If a court agreed with the plaintiff here, it would undermine an existing statute that gave the Secretary the authority to enter into the settlement agreement. Likewise, for the purposes of the Election Clause, Georgia state law incorporates the Secretary into the “legislature” by making him the chief elections officer in the state responsible for administering elections.
The settlement agreement argument that Trump supporters have been making is wrong and is predicated on fundamental misunderstandings of the Constitution and Georgia state law.
NOTE: Wood was asking for an injunction – a type of equitable relief that requires a plaintiff to not only show that their claim is likely to succeed on the merits but that ordering it is in the public interest (among other things). Ultimately, Wood is unsuccessful because he does not have standing to bring the suit but rather than stopping at that analysis the court explained how the underlying suit had no chance of success.**** We’ll discuss injunctions and standing in future posts.
* Wood v. Raffensperger et al. No. 1:20-cv-04651-SDG (N.D. Georgia Nov. 20, 2020)(order denying temporary restraining order).
** These acronyms refer to the Democratic Party of Georgia, the Democratic Senate Campaign Committee, and the Democratic Congressional Campaign Committee.
*** Wood at 7-8.
**** One reason for doing this is in case an appellate court disagrees with the district court’s standing analysis. Even if Wood has standing, he still does not have a case.