The Amistad Project’s Assault On Presidential Elections

The Amistad Project has filed a very dangerous lawsuit whose arguments, if accepted, could end Presidential elections as we know them. The core of the lawsuit cites Article II, Section 2 of the Constitution which states:

Each state shall appoint, in such manner as the legislature thereof may direct” [its electors for the electoral college].

The Amistad Project interprets this provision to say that a state legislature cannot delegate its supposed duty to appoint electors to any other branch of the state government. According to the lawsuit this:

non-delegation doctrine, left it to the state legislatures to “direct” post-election certification of Presidential electors — not to “delegate” post-election certifications, perpetually and in a wholesale fashion, to state executive branch officials as a ministerial duty

In this process the Amistad Project bizarrely frames this as a right of the people, a right simply not provided for in the Constitution. Per the Amistad Project:

Voters in Presidential elections have a constitutional right to have their respective state legislatures meet after the election and certify their votes and, based on the votes, certify the Presidential electors whose votes are counted in Congress to elect the President and Vice President.

As a starting point, the Constitutional text plainly does not say any of this. The Constitution does not mandate that state legislatures decide who the electors are, only the manner of choosing electors. In a stunning contradiction, paragraph 47 of the Amistad Project’s complaint acknowledges this stating:

State legislatures have plenary power to set the process for appointing presidential electors.

The Supreme Court said as much in Bush v. Gore declaring “the state legislature’s power to select the manner for appointing electors is plenary.”

In the words of Black’s Law Dictionary “plenary” means “full, entire, complete, absolute, perfect, unqualified.” In describing the similar Federal power of taxation as plenary the United States Supreme Court declared it as embracing “every conceivable power of taxation.” Brushaber v. Union Pacific, 240 U.S. 1, at 12. Applying similar language to the state’s plenary power in this instance would suggest that state legislatures can embrace any conceivable process for appointing presidential electors.

Once that is understood this entire non-delegation doctrine falls on its face. State legislatures are free to establish a process (or “manner” in the words of the Constitution) that delegates, or does not delegate, the appointment of electors in any conceivable manner it sees fit. The legislature of a state could, completely within the authority of the Constitution, simply set a process by which the appointment of electors is solely delegated to the governor of the state. In football obsessed Alabama the State legislature could decide that the manner choosing the electors shall be dependent on the outcome of the Alabama v. Auburn football game. In Bush v. Gore the Supreme Court also rather plainly said, “The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.”

Under the approach sought by the Amistad Project the state legislature’s power to choose the manner by which the state’s electors are chosen is no longer plenary. Rather the state legislature is barred from choosing a manner that involves the executive branch of the state. The Amistad Project’s complaint attacks the plenary power of the state legislature directly stating, “state legislatures under Article II have no authority to delegate post-election certification of Presidential electors to state executive branch officials.” [Paragraph 43 of the Complaint] One cannot go from “plenary power” to “no authority.”

The inconsistency is remarkably brazen. On paragraph 52 its complaint the Amistad Project declares that “the State legislatures’ constitutional primacy in selecting presidential electors . . . cannot be usurped by . . . the Federal government.” Yet the Complaint demands that the Federal judiciary usurp the State legislature’s primacy in setting the manner by which its electors are chosen by imposing a requirements that the state legislature ratify the election results.

The intent of all this is clear. The Amistad Project seeks to shift the certification of the people’s vote for President from the mere ministerial functions of the executive branch and convert it to a political function of the legislative branch. Under this mandate the Presidential election in any state would be reduced to a mere popularity poll. The “election” would effectively be nothing more than a non-binding recommendation of the people, a suggestion, to the state legislature, which would make the final call on which candidate’s electors are chosen by the state. The Amistad Project wants Republican controlled state legislatures to reverse the choice of the people when it is not the Republican chosen by the people.

Don’t get me wrong. In the exercise of plenary power to choose the manner of selecting electors for the state any state legislature is absolutely free to do exactly as the Amistad Project suggests. As Bush v. Gore stated, a state legislature “may, if it so chooses, select the electors itself” with or without a non-binding poll of the state’s citizens. However, it is one thing to say that a state has the power to do this, it is quite another say that state’s power is Constitutionally limited to doing it the one way the Amistad Project insists it must be done.

While the Constitution does not mandate their doing so, all states currently have a manner of choosing electors where the people of the state make that choice at the ballot box. The Amistad Project seeks to eliminate that, reducing the people’s choice to nothing but a non-binding suggestion to the legislature which would ultimately decide. It is an attack on both state’s rights and democracy.

EDIT AND UPDATE

The District Court has ruled on this case, and followed with stunning precision the reasoning I presented above regarding the plaintiffs’ non-delegation arguments. After first ruling that Plaintiffs would lose because they lacked standing, and because the court had no personal jurisdiction over the named defendants, the court said this:

Even if the Court had subject-matter and personal jurisdiction, it still could not rule in Plaintiffs’ favor because their central contention is flat-out wrong.

Citing the Constitution’s apportionment clause I discuss above the court then states:

Plaintiffs somehow interpret this straightforward passage to mean that state legislatures alone must certify Presidential votes and Presidential electors after each election, and that Governors or other entities have no constitutionally permitted role. See Compl., ¶ 55. As a result, state statutes that delegate the certification to the Secretary of State or the Governor or anyone else are invalid. Id., ¶ 58. That, however, is not at all what Article II says. The above quoted language makes manifest that a state appoints electors in “such Manner as the Legislature thereof may direct.” So if the legislature directs that the Governor, Secretary of State, or other executive-branch entity shall make the certification, that is entirely constitutional. This is precisely what has happened.

You can see how this language and reasoning closely tracks my own above. Sometimes it seems I really do know what I am talking about.

Finally, this judge has had enough. It was the weight of several factors combined that compelled him to make clear his intent to consider sanctioning Trump’s attorneys.

  • The court clearly had no subject matter jurisdiction because plaintiffs lacked standing.
  • The court clearly had no personal jurisdiction over the defendants named in the case.
  • The claim on the merits was facially frivolous.
  • The Plaintiffs did not serve copies of the complaint on many of the defendants (as they must do) even after the court reminded them strongly of this obligation.

This last point was particularly compelling for the court. The failure to perform the basic notifications, even after the court’s reminder, strongly suggested to the judge that the plaintiffs were not serious about the suit but had just brought it for (and I quote) for the purpose of “gamesmanship or symbolic political gestures.” The judge angrily concluded:

As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.

Booyah! The judge is saying Plaintiffs’ attorneys will have to explain why he shouldn’t refer them to their respective Bar Associations for discipline that could include suspension of their law licenses. The statement will likely also encourage defendants to file for compensatory sanctions under Rule 11 of the Federal Rules of Civil Procedure.

I encourage you to read the decision. It is only seven pages long.

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Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80

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