How Article II Prevails: 

the greatest of all states' rights.

by John Manimas Medeiros

 

Twenty-five state legislatures have passed laws that require specified procedures for the functions and behavior of the presidential electors chosen by the legislature or by the people in a popular vote.  However, all such laws are in conflict with Article II of the Constitution, which states that the presidential electors shall be selected "as the legislature may direct."

 

There is a semantic phenomenon entailed in all such state laws, because it looks like by passing such a law the legislature has "selected" the presidential electors as they have so "directed."  But that is incorrect if not impossible.  Here are the three legal flaws in these state laws:

 

One:  If the electors are required by state law to cast their presidential electoral votes in some manner that upholds or enforces the popular vote of the voters of the state, that provision is in direct conflict with the meaning of Article II of the Constitution because such a provision causes the presidential electors to be selected by the people rather than by the legislature.  In other words, any such state law has the intent to have the presidential electors be selected by the people themselves instead of by the state legislature, as is the requirement of Article II.  Any method, however designed, that causes the electors (or the President) to be chosen directly by the people requires an amendment to Constitution Article II.

 

Two:  The power vested in the state legislature by Article II, to elect the presidential electors to elect --- or rather "appoint" --- the President of the United States is not a legislative authority but is a distinctly separate political power that is not and cannot be in conflict with any state law.  The legislative power is defined and described separately in Article I.  Article II is not pertinent to the law-making power or law-making acts, because the selection of the presidential electors is not making a law.  When a state legislature "elects" or selects their presidential electors, they are not making a law or repealing any law.  They are just exercising a particular but separate political authority that has been vested in them by Article II.

 

Three:  Any law passed by a state legislature of the past cannot prevail over any act of the CURRENT legislature, especially any act of election, selection or appointment.  Where Article II says as "the" legislature may direct, that "the" means absolutely as the CURRENT legislature may direct, which is distinctly different legally and the current state legislature is a legislative body politically separate from all past state legislatures.  For example, a law regarding the behavior of the presidential electors could have been passed in 1953 (Connecticut) or 2013 (Mississippi) but how the presidential electors are selected, and how they shall cast their presidential electoral votes, is subject to the unimpaired control of THIS legislature of the present election year of November 2016, and cannot be decided in advance by any legislative body of the past.  Such a practice, where a legislature of the past participated in the selection of the presidential electors of the present election would mean that the presidential electors were being selected by the operation of a past state law, rather than "as the [present] legislature may direct."  Therefore, any state law passed by a state legislature of the past before that same legislature of the present selected the presidential electors, functions as an alternative to Article II, and there can be no alternative to Article II unless there is a Constitutional Amendment to Article II.

 

In conclusion:  The power of the current state legislature to select the presidential electors, as they may direct and as they deem in the best interests of the nation, is UNIMPAIRED by any other law or statute.  The Constitution, including Article II, is the supreme law of the land.  An election procedure that accommodates the wishes of the voters --- with regard to the election [appointment] of the President --- is a free and voluntary political act of a state legislature and cannot be required by law unless Article II is revised by a Constitutional amendment.  If a state requires the electors to be chosen by popular vote, by any law or procedure, that practice is in direct conflict with the provision of Article II.  Article II is in fact the most powerful and most distinctive of all "states' rights."   

 

Reference, from Article II:

 

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.