As legal challenges rage against election practices and alleged election fraud in the six hotly contested states of Pennsylvania, Michigan, Georgia, Arizona, Wisconsin, and Nevada, constitutional scholars are talking about how the Constitution firmly places the power to determine a state’s slate of electors in the hands of the state legislature. And they are saying that in since all but Nevada, the GOP controls both chambers of the state legislature, that the determination of who is elected the next president of the United States could very well come down to what the right three of those legislatures do.
This article explores the seminal 1892 U.S. Supreme Court case on the topic of state legislative selection of electors, McPherson v. Blacker, including the history around the case and how subsequent Supreme Courts have applied it. Interestingly, the case centers around one of the battleground states of today, Michigan.
Grover Cleveland, in the election of 1884, was the first Democrat to take the White House after the War Against Southern Independence. In 1888, he lost his seat to Republican Benjamin Harrison, but tried again in 1892 and became the first and only president to lose re-election then retake the presidency in a non-sequential term.
In Harrison’s term, the Democrats captured Michigan at the 1890 mid-term elections. And in attempt to help Cleveland or other Democrat nominees in the future, the state legislature changed its method of choosing electors from winner-take-all electors in a statewide election to a district based scheme of selecting electors that would likely mean that the electors would split the Michigan vote for president. The scheme elected one elector from each Congressional district, and then to select the other two electors provided by having two Senate slots, they created a district for the western part of the state and the eastern part of the state. (Note that Maine and Nebraska choose their electors on a district basis, today.)
The Republicans did not like this and sued first in Michigan to overturn the scheme, claiming it violated Article II of the Constitution and the Fourteenth and Fifteenth Amendments. They lost in the Michigan Supreme Court and appealed to the U.S. Supreme Court. They lost resoundingly there, too. More on why in a minute.
The electors produced by the new Michigan law did indeed produce a split elector vote in 1892. It produced 9 electors for Republican Benjamin Harris (who was running for re-election) and 5 electors for Democrat Grover Cleveland. Cleveland ended up winning the election by a big margin of electoral votes (277 for Cleveland to 145 for Harrison), so the Michigan effort made no difference in the outcome of the race. (Students of third party history would be interested to know that the Populist candidate for president received 22 electoral votes in the 1892 race.) Michigan then changed its elector selection law back to popular vote, winner-take-all before the next presidential election.
The Supreme Court unanimously rejected the challenge by the Michigan Republicans. The author of the opinion was Chief Justice Melville Fuller, who was an appointee by none other than Democrat Grover Cleveland in Cleveland’s first term. (Fuller had been characterized as a Democrat Copperhead who opposed the war on constitutional grounds.)
The McPherson v. Blacker opinion was a full-throated deference to state legislatures as the body selected by the Constitution that has all power in selecting electors from their state. The syllabus of the opinion in the U.S. journal reporting the case said:
Under the second clause of Article II of the Constitution, the legislatures of the several states have exclusive power to direct the manner in which the electors of President and Vice President shall be appointed. Such appointment may be made by the legislatures directly, or by popular vote in districts, or by general ticket, as may be provided by the legislature.
As to the notion that the Fourteenth or Fifteenth Amendment modified Article II’s placement of the power of selecting electors firmly with state legislatures, the syllabus summarized the opinion as:
The second clause of Article II of the Constitution was not amended by the Fourteenth and Fifteenth Amendments, and they do not limit the power of appointment to the particular manner pursued at the time of the adoption of these amendments or secure to every male inhabitant of a state, being a citizen of the United States, the right from the time of his majority to vote for presidential electors.
Article II, Section 1, says in the second clause “Each State shall appoint, in the Manner as the Legislature thereof may direct, a Number of Electors . . .”
Chief Justice Fuller devoted a lot or research and ink in McPherson to the practices of the states in selecting electors in the early days of the Republic. He pointed out that five of the original ten states that picked electors to elect George Washington in the first presidential election under the Constitution in 1788 picked their electors directly. Nine out of fifteen states did so in the second presidential election of 1792 and nine out of sixteen did so in the election of 1796. As late as 1824, six state legislatures picked their electors directly. South Carolina did so through the election of 1860.
The question in 2020 will be whether a state legislature can pick their slate of electors right before the time for election AFTER they had previously directed a different manner for selecting earlier. McPherson gives every indication that they have that very power. Bush v. Gore (2000) agreed, giving its own formulation and quoting McPherson v. Blacker favorably. It said:
The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See [McPherson v. Blacker, 146 U.S. 1,] 35 (1892)“ ‘[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated’
The faithless elector case decided earlier this year, Chiafalo v. Washington, used the absolute power of the state legislature over the selection of electors affirmed by McPherson as a rationale for their decision that states legislatures can put conditions on the appointment of electors.
McPherson quoted former Justice Joseph Story from his Commentaries on the Constitution where he said that “direct choice by the legislature” of electors “has been firmly established in practice ever since the adoption of the Constitution, and does not now seem to admit of controversy even if a suitable tribunal existed to adjudicate upon it.” (emphasis added). Clearly the judiciary has never thought it had the power to tell state legislatures how to pick its electors.
Chief Justice Fuller hammered the point home. “The power and jurisdiction of the state is exclusive.” And “The question before us is not one of policy, but of power.”
Who has the final say on what electors are chosen by a state? Who can change their mind at the last minute for any reason and select their own slate of electors? Who can remedy a widespread perception of fraud that undermines the method selected by the state legislature before by selecting electors directly? Who decides what burden of proof and evidentiary standards are required to undermine confidence of the people in the conduct of the count of the popular vote for electors and justify selecting electors directly? The answer every time is the state legislature.
And who has the authority and power to second guess the legislature in its decision on who the electors are from the state? No one. State legislatures are where the buck stops in the preservation of rule of law, confidence of the electorate in the integrity of our institutions, in securing our liberty and our Constitution, and of saving our country.
Pray that the GOP legislatures of Michigan, Pennsylvania, Georgia, Arizona, and Wisconsin understand their power – and their duty. And that they have the certitude and courage to make the right decision.
Tom Glass lives in Northwest Harris County. Click here to reach his email. He is also on Facebook as Tom G Glass. He leads a group called Texas Constitutional Enforcement which can be explored at its website or Facebook group. And given the recent Facebook censorship, there are now Texas Constitutional Enforcement groups on Texan owned and operated Freedom Lake and Blabbook, as well as MeWe and Wimkin.