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.
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.