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Online Vol. 106 Issue 2

The Electors Clause and the Governor’s Veto

Nathaniel F. Rubin. J.D., Stanford Law School, 2018. My thanks go to Lisa Larrimore Ouellette, Allison Douglis, Fares Akremi, and Adam Hersh—without whose feedback and guidance this Essay would not have been possible.  My thanks too to the editors of the Cornell Law Review for their excellent work under trying conditions—including Victor Flores, Nicholas Pulakos, Lachanda Reid, Gabriela Markolovic, and Jared Quigley. All errors are my own.

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19 Jan 2021

This Essay examines whether the United States Constitution allows a governor to veto a state legislature’s bill governing presidential elections.  The Constitution does not support this seemingly intuitive proposition directly, and on its face appears to vest control over presidential elections solely in the hands of state legislatures: while Article II of the Constitution explicitly provides for the “Legislature” of each state to control the “manner” in which electors are chosen, it makes no mention of state governors.  This vagary in the Constitution’s text takes on particular import in light of political polarization over election administration in recent years.  Moreover, the COVID-19 pandemic has prompted numerous states to make emergency modifications to their election systems, including delaying elections or attempting to cancel marginally competitive presidential primaries.  Commentators have even expressed fear that a state legislature may eventually attempt to exercise its plenary authority to determine how presidential electors are appointed under Article II, Section 1 of the Constitution to choose electors without holding a popular vote.  This Essay answers these concerns by arguing that a state governor can veto state legislatures’ bills governing presidential elections on the same terms as any other legislation. Although the Constitution may not explicitly provide for a state governor’s role, the Supreme Court’s precedents and longstanding practice strongly suggest that a state governor has the same powers over bills governing presidential elections as over other state legislation.  This conclusion has further implications for other potential conflicts between state legislatures and governors over presidential elections, including rules for absentee balloting, awarding electors by congressional district, using ranked-choice voting, or entering the National Popular Vote Interstate Compact.

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