The results of a case that the Supreme Court has agreed to hear in its next term could make all the difference
which elector slates to credit; Article II of the Constitution plainly gives the federal government the power to prescribe, though not how, electors from the states are to be chosen, and Congress has exercised that power in setting National Election Day as the time all states much pick their electors . So any change in elector-selection process by a state after Election Day is out of bounds.
But even the less extreme version of ISL being pressed in court—under which state legislatures have plenary power to do what they want, so long as they stake out their powers before Election Day—is incredibly dangerous. For example, under ISL if an elected state legislature were to announce today that in 2024 it will pick presidential electors itself without regard to what the state voters desire, even if the state constitution provides that electors shall be chosen by the people, there is nothing any other organ of state government—the Governor; the courts, as in the North Carolina case; the people themselves—can do about that.
Early practice right before and right after the Constitution was adopted provides further, compelling reason to reject ISL ideas. All told, more than half of the 11 states that ratified the Constitution in 1787–88 had state constitutions that expressly regulated state legislatures in the context of federal elections in the 1780s and early 1790s. All these states acted in ways precisely contrary to ISL theory.
Just as the founding generation’s actions repudiate ISL, so too does a string of unbroken decisions by the Supreme Court from the early 1900s to the present. The Court has upheld, in the face of ISL arguments, decisions by state constitutions to involve both voters and governors in drawing congressional districts.
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