united-states constitutional-law us-constitution elections
Do governors have veto power over the appointment of the electors by state legislature?
<p>I believe governors in all 50 states have veto power when normal laws are passed in their states.</p>
<p>However, if a state legislature chose (or was directed to by the courts) to appoint the electors in a presidential election directly, would the governor still have veto power then?</p>
<p>Or does Article 2 prohibit vetoes by the executive branch? Article 2 states:</p>
<blockquote>
<p>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.</p>
</blockquote>

<p>That would depend on each state's constitution and laws.  Each state must &quot;direct&quot; how electors are to be appointed, normally by passing a law. That law would be subject to a possible veto, and potential override of said veto, in whatever way the state's constitution provides. Such a law could specify that electors are appointed by a resolution of the legislature, for which the state's governor's assent might not be needed, depending on the state's constitution. Or it could specify that they are appointed in a special law, which would then follow normal law-making procedures.</p>
<p>Some other nprocedure could also be provifed in a law laying out new procedures</p>
<p>Direct appointment was not uncommon early in the US history, up to 1860 or so. I have not checked whether those appointments were subject to gubernatorial veto, but even if they were, that would not control what a state might do now.</p>

<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3698101" rel="nofollow noreferrer">This paper</a> addresses the issue from a US Constitutional perspective. A variant question is whether the laws of constitutions of any state actually allows such an action. The US constitution does not say that governors have any veto power whatsoever, so it is a matter of state law whether there is the potential for such a veto. The essay argues that a governor has such a power, in the situation that you describe. One case where there is no such possibility at least withing the scope of state law is Washington state, where <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=29A.56" rel="nofollow noreferrer">the law requires</a> absolute compliance with the results of the vote. That is, a faithless elector will be replaced until a correct vote is achieved, and there is no provision for &quot;we can't decide&quot;.</p>
<p>W.r.t. the US Constitution, popular vote is a matter of state discretion. Every state has legal provisions stating how electors are to be selected, and how the votes of electors are to be handled. The Washington legislature could, theoretically decide that they do not like the probable outcome, and change the law so that the legislature itself votes on electors. But such a change in the law is subject to gubernatorial veto under Washington state law – and legislative override of said veto. In Washington, there is no existing law saying &quot;If X happens, then the legislature directly decides&quot;.</p>
<p><a href="https://www.supremecourt.gov/opinions/14pdf/13-1314_3ea4.pdf" rel="nofollow noreferrer">Arizona State Legislature v. Arizona Independent   Redistricting   Commission</a>(2015) is somewhat relevant, in that there was a matter that hinged on the word &quot;Legislature&quot; in the Arizona Constitution. The court interpreted the reference to &quot;Legislature&quot; to be to the system of lawmaking, and not specifically the senate+representatives houses:</p>
<blockquote>
<p>our  precedent  teaches  that  redistricting  is  a  legislative
function,  to  be  performed  in  accordance  with  the  State’s
prescriptions  for  lawmaking,  which  may  in­clude  the  referendum
and  the  Governor’s  veto.</p>
</blockquote>
<p>It should be noted, though, that Roberts etc. dissented, and the demography of the court has changed since then. At any rate, the article concludes that it is unlikely that SCOTUS would overturn a gubernatorial veto, on the grounds that the government is not a mamber of the &quot;legislature&quot; in one reading of the term.</p>

<p>This has never been tested. If the state legislatures' directing the manner of choosing electors is the same as passing any other state law, then, as the other answers have stated, the governor should be able to veto it, if that is allowed under the state constitution.</p>
<p>But there might be a legal theory that suggests that the state legislatures' directing the manner of choosing electors is a separate power from passing a state law. In Bush v. Gore (2000), there was a <a href="https://www.law.cornell.edu/supct/html/00-949.ZC.html" rel="nofollow noreferrer">concurring opinion</a> by 3 of the justices (Rehnquist, Scalia, and Thomas) that said that the Florida Supreme Court cannot act contrary to the intent of the Florida legislature regarding the manner of choosing presidential electors. Granted, only a minority of the court in that case joined this opinion, and several other justices rejected it. In a <a href="https://www.supremecourt.gov/opinions/20pdf/20a66_new_m6io.pdf#page=6" rel="nofollow noreferrer">recent order</a> denying a stay regarding 2020 election changes in Wisconsin, Justice Kavanaugh cited the same concurring opinion from Bush v. Gore. We don't know how many justices may agree with this theory today.</p>
<p>Although this legal theory concerned the ability of state courts to change the election rules for choosing of electors, the same reasoning might affect governors too. If directing the manner of choosing electors, including rules for the election, were a normal state law, then the Florida Supreme Court should have been able to overrule parts of the law for being unconstitutional or modify it to follow the state constitution as it interprets it. The position that it could not do that freely could mean that the state legislatures' directing the manner of choosing electors is a separate power from passing a state law. In that case, it is plausible to argue that the state legislature can also set the manner of choosing electors without needing the governor's signature, even though a normal state law would need the governor's signature under the state constitution.</p>
<p>Again, the original legal position on state courts was only taken by a minority of justices, and we don't know how many Supreme Court justices support the position today. And even if they support the position on state courts, I don't know if the reasoning would lead to a conclusion that the governor can't veto. All I'm saying is I see a possible path there.</p>
