Texas SCOTUSFiling

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28. In the second presidential election, nine
of the fifteen States that appointed electors did so by
direct legislative appointment. Id. at 30.
29. In the third presidential election, nine of
sixteen States that appointed electors did so by direct
legislative appointment. Id. at 31. This practice
persisted in lesser degrees through the Election of
1860. Id. at 32.
30. Though “[h]istory has now favored the
voter,” Bush II, 531 U.S. at 104, “there is no doubt of
the right of the legislature to resume the power [of
appointing presidential electors] at any time, for it can
neither be taken away nor abdicated.” McPherson, 146
U.S. at 35 (emphasis added); cf. 3 U.S.C. § 2
(“Whenever any State has held an election for the
purpose of choosing electors, and has failed to make a
choice on the day prescribed by law, the electors may
be appointed on a subsequent day in such a manner
as the legislature of such State may direct.”).
31. Given the State legislatures’
constitutional primacy in selecting presidential
electors, the ability to set rules governing the casting
of ballots and counting of votes cannot be usurped by
other branches of state government.
32. The Framers of the Constitution decided
to select the President through the Electoral College
“to afford as little opportunity as possible to tumult
and disorder” and to place “every practicable obstacle
[to] cabal, intrigue, and corruption,” including “foreign
powers” that might try to insinuate themselves into
our elections. THE FEDERALIST NO. 68, at 410-11 (C.
Rossiter, ed. 1961) (Madison, J.).
33. Defendant States’ applicable laws are set
out under the facts for each Defendant State.