7

Article II, Section 1, Clause 2 of the Constitution states "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors".

This seems to be a non-legislative power.

By non-legislative power, I mean powers that still belong to the legislature, but involve duties that do not produce laws. Examples are treaties, approving appointments, impeachments, expelling member, and in the case of the clause in question, selecting electors. Legislative powers change laws, non-legislative powers conduct business. Executing a non-legislative power involves a decision made by the legislative body. That decision does not become law, but affects the operation of government.

Does this mean a state legislature, could at any time, choose to appoint electors regardless of public election results and state laws?

Further, why doesn't this clause invalidate state laws that provide for the selection of electors by popular election? Do state legislatures "sign-off" on presidential election results in order to comply with this clause, if indeed it grants a non-legislative power?

Perhaps this question is a better fit for law, but it seems politics has to be involved in the reason why our system works as it presently does.

As I understand, legislatures can establish their own internal rules, which would govern any exercise of their non-legislative powers, but it's not clear to me that a legislature must be bound by law in their exercise of those powers.

Internal rules can be debated and changed within the legislature. Laws, however, require the approval of the executive. If a law attempts to supersede a non-legislative power, it doesn't seem that the legislature can choose to change it without requiring the signature of the executive, thus making that power subject to another branch.

I'm looking for answers to that question, one way or the other, ideally backed by precedent, constitutional citation, academic analysis, or historical examples.

I would imagine fear of massive political repercussions prevent legislatures from ignoring the popular vote, so these questions are mostly academic. However, that's a separate issue.

Kylos
  • 200
  • 8
  • a state can do whatever it wants: auctions, votes, foot races, cage matches... – dandavis Jan 29 '21 at 05:19
  • 4
    What is a "non-legislative power" and why does this seem to be such? – Azor Ahai -him- Jan 29 '21 at 17:38
  • 1
    "in the case of the clause in question, selecting electors": but that statement is not correct. On the contrary, the power granted is not to select electors but to direct the manner of appointing electors. It may seem a trivial distinction, but here it is not, because the question at hand is whether the legislature may vest the appointment of electors in some other body. In the first case, that might be debated, but in the second case it cannot. See the paragraph I just added to my answer. – phoog Feb 01 '21 at 17:57
  • 1
    The answers seem to have overlooked the practical aspect. If the legislature decided to override the results of the election, the voters would not be happy, and would likely vote them out of office at the next opportunity. – jamesqf Feb 01 '21 at 18:50

5 Answers5

9

why doesn't this clause invalidate state laws that provide for the selection of electors by popular election?

Because

in such Manner as the Legislature thereof may direct

means they can make their own state laws.

Regarding the 1st question

Does this mean a state legislature, could at any time, choose to appoint electors regardless of public election results and state laws.

That also depends on the state's own constitution etc., especially the "at any time" part. Some (state specific) process would have to be followed e.g. for changing the state's law.

Regarding this last q

As I understand, legislatures can establish their own internal rules, which would govern any exercise of their non-legislative powers, but it's not clear to me that a legislature must be bound by law in their exercise of those powers. I'm looking for answers to that question, one way or the other, ideally backed by precedent or historical examples.

If Congress could just ignore its own laws as (not) applying to itself, why do you think they bothered to carve explicit exceptions for Congress from numerous laws like OSHA, FOIA, etc.?

And with regard to state legislatures "changing their mind" with respect to electors already sent, that's also subject to constraints from federal law (3 U.S. Code § 5)

If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.

Basically, States can't "take back" (or change) the electors retroactively after Election Day. They could have conceivably changed their state laws or even appointed the electors (directly by state legislatures) before Election Day.

Actually, what you seem to be taking about here has been (somewhat derisively) called "legislative superpower" and it was actually proposed by a minority of the US Supreme Court. Notable proponents include Rehnquist (in the past obviously) and Kavanaugh now. So, if this somehow reaches the Supreme Court again, given the current more right-wing bias of the Court, maybe they would strike down 3 USC § 5, who knows...

The actual controversies in which Rehnquist (then Kavanaugh) opined were actually a bit different, namely whether legislature was to be interpreted narrowly (only as the elected body) or if it extended to the state's courts, i.e. whether the latter were allowed to interpret the state's laws in this matter. There was no actual case brought in which the state legislature (narrowly defined) actually changed the electors. So you could say that is (totally) untested.

The issue (of how extend that to post-election override) has been hashed a bit in the media by law academics, e.g.:

In Bush v. Gore, the Supreme Court interpreted that power to mean that the legislature could vest the selection of electors in the people — through a popular election — but that it could “take back” that power “at any time.” On Levin’s reading, “at any time” includes after an election. So that after an election, the legislature could say, “Thanks for your input, but we’re going a different way.”

In fact, in Bush v. Gore, the Supreme Court was saying something very different. The court was certainly affirming a special role for the legislatures in selecting electors. And it may well have been affirming that a legislature’s power could not be controlled by state law. For example, the Colorado Constitution requires that the electors be chosen by a vote of the people. On this reading, that constraint would not actually constrain the state legislature. Colorado legislators would be free to ignore their state constitution and pick electors on their own.

But such a decision would have to be made before the election, because of a second part of the Constitution that Levin has overlooked. As well as giving the state legislatures the power to set “the manner” by which electors are chosen, the Constitution also gives Congress the power to decide the day (the Constitution actually says “time”) on which electors are to be appointed. That day this year was Nov. 3. And if any state selected its slate of electors on a day other than Nov. 3, it would violate federal law, and that slate could therefore not be counted.

Somewhat more cautiously a 2019 paper argues that such an override would be a violation of the Due Process Clause (14th Ammendment) e.g. because courts held that "[if] the election process itself reaches the point of a patent and fundamental unfairness, a violation of the due process clause may be indicated", but that only if there were not extenuating circumstances like e.g. a natural disaster that made the normal (state-law prescribed) election impossible. Such an exemption is actually provided for in federal law itself:

Congress itself has explicitly recognized that “the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct” if and when “any State has held an election for the purpose of choosing electors, and has failed to make a choice.” [3 U.S.C. § 2.]

(More extensive works have been written on how courts have interpreted due process in the context of elections. While SCOTUS itself has never explicitly applied the Due Process clause to an election matter nor held that liberty under the 14th Amendment includes the right to vote, lower courts have done so. On the other hand SCOTUS itself has "often waxed romantically on the profound importance of the right to vote in general" as it has e.g. in several passages of Reynolds v Sims.)

Ultimately, the 2019 paper argues that in case of competing slates of electors from the same state, it comes down to a (political) decision in the US Congress which of them to count. (The pressures we saw Trump put on Pence basically illustrate that. In the latter context, the Electoral Count Act (3 USC chapter 1)--which Pence followed--has also been declared unconstitutional by some lawyers (and long before 2020) imputing it such long list of constitutional violations that it would be really distracting to even summarize them here. In some sense, that's a parallel debate to the one on what state legislatures are or aren't allowed to do with respect to electors. Suffice to say that the Electoral Count Act hasn't been found unconstitutional by any court insofar, as far as I know (that paper itself admits that it's holding a minority view). In addition to that, it has been debated whether [constitutionally speaking] ECA is truly a statute or just a joint rule--which would have implications whether the President should have a say [veto] in changes to it. To really test this, Congress would have to try to amend ECA's rules all by itself, bypassing the President, which against hasn't happened. What you asked about the states' executive having a say in [elector election] law changes is basically analogous to this debate. So, yeah, theoretically there are a lot constitutional crises possible in relation to electors, but unless someone actually plays those hardballs, at best you'll have some academics ponder them.)

the gods from engineering
  • 158,594
  • 27
  • 390
  • 806
  • Yes, but if this is a non-legislative power, how can state law bind the current legislature? – Kylos Jan 28 '21 at 20:50
  • 4
    @Kylos who (besides you) says this is a "non-legislative power"? And state laws can definitely bind the legislature until they change the law. – the gods from engineering Jan 28 '21 at 20:52
  • Imagine a state law providing rules for impeachment. That's another non-legislative power, but would a current legislature be bound by laws for impeachment passed by prior legislatures? – Kylos Jan 28 '21 at 20:53
  • 4
    @Kylos: absolutely they would be bound unless they changed the law. Parliamentary supremacy means parliament can change laws, it doesn't mean it can just ignore them. – the gods from engineering Jan 28 '21 at 20:55
  • The fact that it is a special power defined in the constitution makes it a non-legislative power. US congressional appointments, impeachments, validation of electoral votes, determining president in case of electoral ties, ratification of treaties, etc are all specific, non-legislative powers mentioned in the constitution. This clause is the same. – Kylos Jan 28 '21 at 20:57
  • Can you point to legal precedents, etc, that show that non-legislative powers can be bound by law? – Kylos Jan 28 '21 at 21:00
  • 1
    @Kylos: Here's another example, the US House of of Representatives can determine the seating (qalifications) of its own members, but nonetheless they passed the Federal Contested Elections Act. – the gods from engineering Jan 28 '21 at 21:01
  • Consider that if a non-legislative power can be bound by law, does it require the signature of the executive to change such laws? If so, wouldn't that mean the power does not truly only belong to the legislature, contradicting the constitution? – Kylos Jan 28 '21 at 21:02
  • And maybe it's just my faulty understanding, but that's what I'm hoping to get from answers. Clarification on why and when a non-legislative power can be constrained by law. As I understand, legislatures can establish their own internal rules, which would govern any exercise of their non-legislative powers, but it's not clear to me that a legislature must be bound by law in their exercise of those powers. I'm looking for answers to that question, one way or the other, ideally backed by precedent or historical examples. – Kylos Jan 28 '21 at 21:10
  • 1
    @Kylos I guess you may be thinking of the non-delegation doctrine, but even that is not absolute. I suspect US states have their own version(s) of that. – the gods from engineering Jan 28 '21 at 21:18
  • In regard to the Federal Contested Elections Act, the House still ultimately votes to accept or reject challenges. Do state popular election laws also require the legislatures to vote to accept or reject the electors determined by law? – Kylos Jan 28 '21 at 21:21
  • Regarding the last question, I agree Congress is subject to its own laws as long as the laws do not attempt to supersede their constitutionally-granted powers. OSHA, as far as I know, doesn't try to limit their ability, for example, to impeach. – Kylos Jan 28 '21 at 21:34
  • 3
    @Kylos Here's an example for you: Congress just passed a law which explicitly created an exception to another law to allow the Senate to confirm a cabinet appointee. If Congress was not bound by the laws it passed (until such time as it repealed them) then there would be no point to a law restricting who can be appointed and/or no need for an exception to it. – Bobson Jan 28 '21 at 21:52
  • @Bobson, I actually had the same question about that situation as well. Is the law restricting appointments unconstitutional or unenforceable and is the exception necessary? Is the periodic exception just theater? Would the Supreme Court even take the case were Congress to simply ignore the restriction and not bother to pass the exception? – Kylos Jan 28 '21 at 21:58
  • @Bobson, thanks for bringing that case up. What I think is tricky about it is that it is easier to pass the exception than to challenge the original law as unconstitutional, and both get you the same result. So it doesn't seem like the question of constitutionality will ever be addressed. – Kylos Jan 28 '21 at 22:09
  • 3
    And to continue @Bobson's example, the 2016-2017 occurrence of the same issue was even more complicated: Congress passed a law (via an appropriations rider) that overrode its (Senate) Rules, just so that that appointment could made expeditiously. If laws don't take precedence over Rules, why would they have bothered with that? https://politics.stackexchange.com/questions/62163/what-is-this-section-179-that-was-referred-to-in-the-hearings-on-the-s-84-author – the gods from engineering Jan 28 '21 at 22:43
  • @Fizz, I think the second half of your answer addresses the concerns raised by my question. The first part isn't really relevant in my opinion. Would you be willing to rework this to focus the answer on those aspects, if possible? – Kylos Jan 29 '21 at 20:45
  • "the Constitution also gives Congress the power to decide the day (the Constitution actually says “time”) on which electors are to be appointed. That day this year was Nov. 3." Cite? Is Nov actually the time when electors are chosen? – Acccumulation Feb 01 '21 at 04:14
  • @Kylos, Fizz: I am increasingly curious as to where the idea of non-legislative powers granted to congress leaves e.g. the power to collect taxes, which is granted explicitly to congress. I am certain that the framers of the constitution understood that the people responsible for demanding, receiving, and processing tax payments would be officers of an executive department, and I don't see how that could be compatible with the idea that a power granted explicitly to congress would necessarily have to be exercised directly by congress. It seems rather to show the idea to be fundamentally wrong. – phoog Feb 01 '21 at 20:01
5

Article II, Section 1, Clause 2 of the Constitution states "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors".

This seems to be a non-legislative power.

The Constitution defines what is and is not a legislative power, and that article defines this to be the power of each state's legislature.

Further, why doesn't this clause invalidate state laws that provide for the selection of electors by popular election?

Because the Constitution says state legislatures get to decide how their electors are chosen, and state legislatures make state law.

Legislatures are allowed to define their own rules and delegate their power to other authorities such as a secretary of state or electoral board.

Do state legislatures "sign-off" on presidential election results in order to comply with this clause, if indeed it grants a non-legislative power?

Only if a particular state legislature passes a law saying they have to.

Does this mean a state legislature, could at any time, choose to appoint electors regardless of public election results and state laws?

Not at any time. And not regardless of state law. They must abide by their own laws and state and Federal constitutions.

But yes, a state legislature may pass laws where they choose the electors regardless of public election results. Originally most state legislatures simply appointed Presidential electors. That system is no longer used, but remains an (extremely anti-democratic) possibility.

However, they are free to change their laws, subject to constitutional challenges. They are constrained by their state constitution, the 14th and 15th Amendments to the US Constitution (possibly others), and Federal voting rights laws.

An example is the National Popular Vote Interstate Compact. Once a majority of states adopt the compact, they will allocate their electors according to the national popular vote. This, in effect, uses the state's powers under Article II, Section 1, Clause 2 to elect the President by popular vote.

Another example is that while most states allocate their electors all-or-nothing, a few split them by Congressional district.

Schwern
  • 5,176
  • 23
  • 27
  • I think you misunderstand what I mean by non-legislative power. Such a power still belongs to the legislature, but involves duties that do not produce laws. Examples are treaties, approve appointments, impeachments, expelling member, and in the case of the clause in question, selecting electors. Legislative powers change laws, non-legislative powers conduct business. – Kylos Jan 29 '21 at 19:57
  • 1
    @Kylos Those are all governed by laws, state and federal constitutions, and chamber rules. – Schwern Jan 29 '21 at 20:09
  • 1
    @Kylos In the general sense, a state legislature gets to decide how it goes about its business which includes things like how it decides its own rules (within the bounds of its constitution and applicable Federal rules) and how it selects electors. It just has to be consistent with its own rules (laws, constitution, etc...) – Schwern Jan 29 '21 at 20:12
  • governed to the extent that the power is a nullity? That doesn't make sense. Such powers sensibly must still require a positive action by the legislature, even if the process is governed by other rules. – Kylos Jan 29 '21 at 20:13
  • that's what I'm getting at. The legislature must obviously establish rules and can pass legislation that controls ancillary aspects of the process, but the power still belongs to the legislature to make a decision. This would even allow for a legislature to accept the results of an election conducted by state law, but it seems to me the legislature still has to vote to accept that result, and potentially even has the ability to ignore the results of the vote. If that's correct, it seems there is no legal hindrance to a legislature doing so, only the prospect of an enraged populace. – Kylos Jan 29 '21 at 20:20
  • 1
    @Kylos "but it seems to me the legislature still has to vote to accept that result" Only if that's what they say they must do. If the law says something like "we accept the result determined by " no further vote is necessary. For example, when someone is arrested for violating a law the legislature doesn't vote to confirm the arrest, that's what laws are for. Nor can they vote to simply ignore the law unless their rules say they can (which could run into constitutional problems). – Schwern Jan 29 '21 at 20:28
  • 1
    @Kylos When it comes down to it, yes, the bottom line hindrance to legislative corruption in a representative system is "the prospect of an enraged populace" aka being voted out. – Schwern Jan 29 '21 at 20:38
  • "Only if that's what they say they must do." What prevents them from calling a session and deciding that's what they must do? It seems to me the legislature does not lose that prerogative simply because laws exist that allow electors to be selected by popular vote. Is the answer only "the wrath of the people"? – Kylos Jan 29 '21 at 20:38
  • Ok, so I think we are understand each other. I'd disagree that it's corruption if it's a granted power and is only ignored by custom. – Kylos Jan 29 '21 at 20:42
  • 1
    @Kylos The constitution and laws are not the set of rules to a game to be "won". Constitutional powers are delegated by the people to their legislatures with an understanding that they will be used responsibly. Laws are passed with intent and the expectation is they will be used with that intent. Intent changes over time, and we no longer intend for state legislatures to appoint their own electors. If they did simply because they had the power to do so, that would be a corruption of their delegated power and a probable violation of the 14th and 15th amendments which you seem to overlook. – Schwern Jan 29 '21 at 20:50
  • I am concerned that granted powers have been superseded by law. The proper way to implement a popular vote would have been to amend the Constitution. As it is, it seems the popular vote is built on an unstable foundation and only an unwillingness to challenge has allowed it to stand. – Kylos Jan 29 '21 at 20:57
  • 1
    @Kylos You are correct to be concerned, and it sure could use some formal reinforcement. However, it has been repeatedly challenged. Just the last four years things we took for granted like yes, state electors are chosen by popular vote, were suddenly called into question by people who told us government is really just a game to be "won". It did stand because enough people said no, it's not a game, it's the foundational principles of our country, people's lives are at stake, and it only works if everyone believes in it. – Schwern Jan 29 '21 at 21:14
  • 1
    @Kylos What you're onto is the Tyranny of the Majority which has long been argued and which, to a greater or lesser degree, democracies try to protect themselves against. Independent judges, constitutional restricttions, separation of powers, checks and balances, free press... these all exist to avoid the sort of scenario you're envisioning. The US could use a little more. – Schwern Jan 29 '21 at 21:17
  • you mentioned the 14th amendment. Clause 2 requires that all people (men, initially) be allowed to vote for electors, which is in conflict with the clause I mentioned in my question. Do you have any resources that explain how conflicting portions are resolved? I'm sure different judicial philosophies come to different results. – Kylos Jan 29 '21 at 21:25
  • 1
    @Kylos You'd have to explain what you believe to be in conflict. I think this question has covered enough territory, ask a new one. Be sure to be clear what is your concern vs what you believe to be required; that caused much confusion here. – Schwern Jan 29 '21 at 21:30
  • my question from the start has been, simply, "What would prevent (legally) a state legislature from ignoring the results of the popular vote, given that the constitution grants it the authority to choose electors?" Much ground has certainly been covered trying to get that specific question addressed, but has invariably addressed something other than that question. – Kylos Jan 29 '21 at 21:48
  • When you mentioned the 14th amendment, I read it and noticed the second clause states "But when the right to vote at any election for the choice of electors for President and Vice President of the United States". That is the first clear reference I have seen to the constitution mentioning popular election via the electoral college. As such, it appears the constitution describes two ways for electors to be chosen. Is there legal analysis that shows that the 14th amendment does or does not nullify Article II, Section 1, Clause 2? This is the first reference I have seen that might nullify it. – Kylos Jan 29 '21 at 21:51
  • 1
    @Kylos This comment thread is already far too long and likely to be moved to chat. A new and more focused question will get you more and better responses. You can link it as a tangent off this one. Leave a link to it here and I'll have a look. – Schwern Jan 30 '21 at 20:22
  • 2
    @Kylos "the power still belongs to the legislature to make a decision": the power is to make a decision about how to pick electors, not necessarily the power to pick them itself. The law providing for popular election of presidential electors is the legislature's act exercising the power granted to it in the constitution. Laws generally require the governor's assent, and if the legislature wants to change its mind about how to appoint electors, that also needs the governor's assent. See my answer. – phoog Jan 31 '21 at 22:40
  • 1
    An example that goes more directly to the issue in the question might be the proposed OK SB 33 that will "have the state legislature choose presidential electors unless and until there is a federal law requiring voter ID and auditable paper ballots" – Jontia Feb 01 '21 at 09:19
3

This question overlooks the fact that when the constitution speaks of a legislature it's usually talking about the government as a whole (a holdover from the state of affairs in the UK). Congress has the power to collect taxes according to the constitution, but what that really means is that congress has the power to make laws that provide for the executive branch to collect taxes and for the judicial branch to compel people to pay taxes.

Similarly, state legislatures have the power to specify the manner of appointing presidential electors. The mechanism for making that determination is to pass a law saying how it is to be done. That law must be signed by the governor or pass through whatever other mechanism the state's constitution might provide for passing a law. Thus, the constitution does not "invalidate state laws that provide for the selection of electors [by some means or another]"; rather, it requires states to pass laws providing for the selection of electors.

In other words, the conclusion that this is a "non-legislative power" is incorrect.

On further reflection, it occurs to me that this question would make a lot more sense if the constitution had granted the role of choosing presidential electors directly to state legislatures. Then we could debate whether states could delegate that power to the people through a popular vote, or to anyone else by any means whatsoever. But the constitution didn't grant that role directly to state legislatures (in contrast with the power to choose senators, where it says "chosen by the legislature thereof" rather than "in such manner as the legislature thereof may direct"). Instead, it granted the power to decide how the electors should be chosen. That is a rather broader grant of power.

phoog
  • 17,829
  • 3
  • 58
  • 81
  • you said "The mechanism for making that determination is to pass a law saying how it is to be done." Is that how the states that used legislative selection in the earliest presidential elections selected electors? https://en.m.wikipedia.org/wiki/United_States_Electoral_College#Alternative_methods_of_choosing_electors – Kylos Feb 02 '21 at 05:08
  • @Kylos I rather suspect that they did. It shouldn't be too hard to find the legislative records of at least one of those states online. – phoog Feb 03 '21 at 05:46
0

The Constitution is not ordinarily interpreted so casuistically where fundamental rights like voting are concerned. For instance, the First Amendment clearly states,

Congress shall make no law...abridging the freedom of speech,

yet in practice, courts have held that many governmental regulations that blatantly abridge freedom of speech, from obscenity, to incitement, to shouting "Fire!" in a crowded theater, to laws against slander, libel, and perjury, are 100% in concordance with the First Amendment.
Most would agree that these restrictions, far from being unconstitutional infringements, are essential to a functional civil society, and that the Constitution's framers never intended to preclude these restrictions on speech.
Even the most partisan SCOTUS would surely blanch at such a monarchical interpretation of the legislature's power to appoint electors "in the manner of their choosing", if the electors are chosen without any input from voters, much less contrary to the clearly expressed will of the people.
Rather, it seems more likely that SCOTUS would interpret Article II's phrasing narrowly that legislatures can make laws governing how elections are administrated, but they can't overrule, negate, or abolish free and fair elections for arbitrary and capricious (not to say dictatorial) reasons.

Rivers McForge
  • 409
  • 4
  • 4
  • But there's nothing in the constitution preventing a state legislature from giving itself the power to select presidential electors. In fact, some states have indeed done so in the past. The question is about whether a state legislature can first specify that electors are to be chosen by popular vote and then, after the vote is counted, declare that it didn't like the outcome and specify a different manner of selecting the electors. – phoog Feb 03 '21 at 05:44
  • @phoog "There's nothing in the Constitution preventing" libel, either. In fact, a very literal, textual reading of the Constitution would imply that laws against libel are unconstitutional, because they abridge freedom of speech by definition. Yet laws against libel have repeatedly been found to be constitutional. The whole point of my answer was to highlight that when X is sufficiently bad or dangerous, "There's nothing in the Constitution preventing X" generally does not hold up in court. – Rivers McForge Feb 03 '21 at 06:57
  • @phoog "Some states have done so in the past"--OK, but how long in the past? They just stopped last week? Last month? They stopped ten years ago? Fifty? One hundred? This line of argument carries exponentially less precedential weight/legal force the further back into antiquity you have to reach to find supporting examples. – Rivers McForge Feb 03 '21 at 07:00
-2

Does this mean a state legislature, could at any time, choose to appoint electors regardless of public election results and state laws?

No. The clause does not "grant" to the legislature any authority independent of the state's constitution. Rather, it requires the state, when enacting laws for the purpose of appointing electors, to leave to the legislature the manner of choosing those electors. This means that the executive, judges, or an ad hoc committee is not to decide the manner of appointing electors.

Further, why doesn't this clause invalidate state laws that provide for the selection of electors by popular election?

Because the clause is not a grant of authority, it indirectly requires the enactment of laws, rather than invalidating them.

Do state legislatures "sign-off" on presidential election results in order to comply with this clause, if indeed it grants a non-legislative power?

No, in the normal course of events, the legislature has no involvement with election results or the appointment of electors. Under 3 U.S. Code § 2 - Failure to make choice on prescribed day, the legislature would be involved.

Whenever any State has held an election for the purpose of choosing electors, and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct.

Rick Smith
  • 35,501
  • 5
  • 100
  • 160
  • "This means that the executive, judges, or an ad hoc committee is not to decide the manner of appointing electors." It's unfortunately necessary to note that the state legislature can delegate its power (subject to guiding principles) to the executive, judges, or committees and often does to the Secretary of State and election boards. Many misguided arguments about the 2020 election overlooked this power to delegate. – Schwern Jan 29 '21 at 00:24
  • @Schwern - Not to the manner of appointment, but to the identification of those appointed. – Rick Smith Jan 29 '21 at 00:27
  • “ Because the clause is not a grant of authority, it indirectly requires the enactment of laws, rather than invalidating them.” What’s the basis for this claim? The impeachment power, for example, doesn’t require the enactment of laws. As I read it, this clause doesn’t say anything about laws, which after all require both a legislature and an executive. It wouldn’t make sense to involve the executive in impeachments; why should it be involved in this power? – Kylos Jan 29 '21 at 01:19
  • @Kylos - For the first part, federalism. For the second part, separation of powers within each state's government. That is, the legislature makes election laws, the executive gives effect to those laws. Without the election laws, there would be no election or electors. – Rick Smith Jan 29 '21 at 01:40
  • @RickSmith do you imagine that that the federal executive is prohibited from collecting taxes because the constitution grants that power to congress? Of course not. Congress can delegate that power to the internal revenue service. Similarly, state legislatures can delegate any of their powers to the executive or judiciary. And, like all legislation, statutes concerning the appointment of electors are subject to the governor's signature (if the state's constitution so provides) and to the courts' review. – phoog Jan 29 '21 at 04:36
  • @RickSmith, you're making the assumption that there must be popular elections. That was not the case originally. – Kylos Jan 29 '21 at 19:54
  • @Kylos - Each of the questions I answered was phrased in present tense and at present all choice of electors is by popular vote. Furthermore, "popular election" was used in the question. That it was not the case originally, is irrelevant to any answer to this question. I answered based on, what I saw as, the false assumptions presented in the question. – Rick Smith Jan 29 '21 at 20:22
  • @RickSmith "Without the election laws, there would be no election or electors." is not true. There certainly still is a process for electors to be chosen without elections or election laws. A legislature could meet and select electors at the appointed time, per the constitution. – Kylos Jan 29 '21 at 20:31
  • @Kylos - The statement is true. Yes, the legislature could pass, over a likely veto, a law to allow the legislature to forego elections and chose electors directly. Notice, that a law must be passed to allow the legislature to choose electors directly. Also, were all election laws repealed, the state would no longer be in compliance with the Constitution, the legislature would have no authority to appoint electors and the state would have no authority to certify electoral college vote nor send the electoral ballot to the president of the Senate, etc. – Rick Smith Jan 29 '21 at 21:03