Governor Kemp Cannot Prevent the Georgia Legislature from Choosing Presidential Electors

by | Dec 7, 2020


On Monday, Georgia Governor Brian P. Kemp and Lieutenant Governor Geoff Duncan issued a joint statement in which they rejected a request from some state senators for the calling of a special session of the state legislature for the purpose of the choosing presidential electors.

The press release contains bluster about United States and Georgia law barring the legislature from selecting electors of the legislature’s choice. However, the reality is, as I explained in a November 10 article, the US Constitution provides state legislatures with plenary power to select electors for the Electoral College, and there is nothing governors, lieutenant governors, or state laws can constitutionally do to prevent the exercise of that power.

Since state legislatures’ authority to select electors arises directly from the US Constitution, legislators in Georgia, or any other state, do not require a governor, lieutenant governor, or any other particular politician to call them into session as a prerequisite for the exercising of that authority. The legislators can meet on their own prerogative and determine entirely on their own who the presidential electors will be from their state.

Maybe a state’s governor or anther political office holder could make things a little difficult for legislators who want to meet to select electors by preventing the use of some state property or resources. Maybe a governor, for example, would be able to prevent state legislators from meeting at the state capitol. If that were the case, the legislators could just proceed with selecting electors at an alternative location — a hotel, a middle school football field, wherever.

Kemp and Duncan can choose, as they have, not to call a special session. Irrespective of that decision, the Georgia legislature has a constitutionally guaranteed authority to meet and select presidential electors. It is a sorry situation that Kemp and Duncan are spreading disinformation that such action by the legislature is prohibited.


  • Adam Dick

    Adam worked from 2003 through 2013 as a legislative aide for Rep. Ron Paul. Previously, he was a member of the Wisconsin State Board of Elections, a co-manager of Ed Thompson's 2002 Wisconsin governor campaign, and a lawyer in New York and Connecticut.

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