In December 2020, the State of Texas, supported by seventeen other states, asked the U.S. Supreme Court to intervene in the presidential election and direct the question of whose electors should be appointed to state legislatures. Their claim was grounded primarily on a legal theory derived from McPherson v. Blacker (which had nothing to do with legislatures choosing electors). It also invoked an 1874 Senate Report (on which no action was ever taken) and some dicta in Bush v. Gore.
Central to this claim was the Court’s lengthy review of the history of presidential elections in McPherson, which concluded that the “practical construction” of the U.S. Constitution had conceded plenary power over the appointment of presidential electors to the state legislatures. It is easy to assume that Chief Justice Fuller’s unanimous opinion was essentially accurate, at least in its broad outlines of the historical record. Demonstrably, it was not. Missing was extensive evidence showing that the Framers intended the people to elect the presidential electors. Also entirely absent was any mention of the heated controversies in 1800 and from 1824 to 1826 over the constitutionality of such legislative election. Overlooked as well was the post-Civil War era, during which the doctrine of legislative election was repudiated in multiple ways, not least through formal government actions. These included the resolution of a South Carolina constitutional convention, state statutes, state constitutions, federal statutes, a gubernatorial veto, and, most significantly, in the explicit text of the Fourteenth Amendment to the U.S. Constitution.
McPherson’s once-over-lightly, highly selective historical survey has taken on a significant life of its own. Still, McPherson was fundamentally an easy case, and its pernicious afterlife has had nothing to do with what was actually decided. The controversy in McPherson arose when Michigan Democrats changed the election law while they temporarily controlled state government after the 1890 election. The change was from one system of popular election of electors to another—from the prevailing winner-take-all system to a district system. The purpose was to dilute Michigan’s normally Republican vote in the electoral college.
The Republicans sued, claiming that Article II should be interpreted to require a general winner-take-all popular election. They also claimed that Section 2 of the Fourteenth Amendment was intended to incorporate the winner-take-all system, which by 1866 had become the rule in every state. The history of the electoral college undermined their Article II argument, however. From the founding to the argument in McPherson, no one had ever interpreted the Constitution to require general-ticket elections, and district systems were used extensively throughout the country in the nation’s first decades. Furthermore, in the drafting and ratifying of the Fourteenth Amendment, there was no hint of any intent to incorporate a particular type of popular election for President. While McPherson got those portions of the history right, it ignored one important aspect of presidential election history: the growing and ultimately successful nationwide opposition to state legislatures choosing presidential electors. This Article presents an overview of the significant constitutional and legal history that McPherson omitted, filling major gaps in the McPherson narrative.