Steinfeld on the Electors Clause

Robert J. Steinfeld, University at Buffalo Law School , has posted The Forgotten History of the Electors Clause: The States Abandon Legislative Appointment of Electors as Unconstitutional, which is forthcoming in the Indiana Law Review :

For nearly one hundred fifty years all the states have unfailingly chosen Presidential Electors through a popular vote. But in the year 2000, the U.S. Supreme Court breathed life into a species of constitutional practice that had gone virtually extinct as a regular feature of presidential elections by the late 1820s, and which no state ever employed, even on a single occasion, after the election of 1876. In Bush v. Gore (2000) the Court proclaimed that under the Electors Clause, state legislatures possessed the plenary authority to “select the manner for appointing [presidential] electors,” which included “selecting the electors [themselves].” And added that even after a state legislature had granted the elective franchise to the people of the state, the legislature enjoyed the authority to “take back the power to appoint electors… at any time.” Their interpretation was based in substantial part on the flawed history of the Clause the Court presented in McPherson v. Blacker (1892).

This article seeks to present a fuller account of that history. It begins with a description of the long deliberations at the Federal Convention that led to the drafting of the ambiguous text of the Electors Clause. Not surprisingly, shortly after the Convention concluded, two conflicting interpretations of the Clause’s language emerged. One held that the words “Each state shall appoint” were to be read as “the people of each state shall appoint.” Under this reading, legislatures were only to direct the “Manner” in which popular elections to choose Electors were conducted.

A second conflicting interpretation emerged almost simultaneously. It contended that the words of the Clause gave state legislatures unlimited authority to have Electors appointed in any way they saw fit. They might in their discretion direct that popular elections be held to choose Electors, but they might also decide to appoint Electors directly, without holding a popular election. The practice of legislative appointment, which emerged during the first presidential election, rested on this interpretation. Over the next several decades, however, the practice of legislative appointment was repeatedly challenged as unconstitutional. To a significant extent, those challenges were based on the other interpretation of the Electors Clause.

This article describes in detail the ensuing struggle over the constitutionality of legislative appointment, and over the interpretation of the Clause, which developed during the following decades. This constitutional controversy, however, was not brought to the courts for resolution. Rather, it was treated as a matter of constitutional politics, to be decided through debates and votes in state legislatures, in Congress, in arguments in newspapers, pamphlets, and among the wider public. Most importantly, perhaps, the dispute became a frequent factor in state legislative elections, where voters faced the choice of retaining or replacing legislators who supported the practice.

Over the first three decades of the nineteenth century, as this battle over the constitutionality of legislative appointment was being waged, the number of states that permanently abandoned the practice increased decade by decade. By 1829 only a single state, South Carolina, continued to appoint Electors legislatively. The article shows that legislatures were often moved to repudiate the practice by the widespread opinion that the people alone possessed the constitutional right to choose Electors, and by the voter pressures which flowed from that constitutional understanding. With a few anomalous exceptions discussed in the article, the practice of the states thereafter was to use popular elections exclusively to choose Electors for the next two centuries. Over this long period, none of these states ever asserted through any of their acts that they judged themselves to possess the constitutional authority to appoint Electors legislatively. The states were adopting, as a matter of their practice, the terms of the first interpretation of the Electors Clause: popular elections were required, legislative appointment was not authorized.

The article concludes by reassessing the Supreme Court’s opinion in McPherson v. Blacker in light of this fuller history. It argues that because the Court omitted many crucial facts from their account, facts showing how often and how long the constitutionality of legislative appointment had been contested, their principal conclusions were deeply flawed under the test they themselves laid down for “fixing” the construction of a constitutional provision through long accepted practice. Their opinion, consequently, cannot serve as binding precedent for the proposition that the Electors Clause confers plenary authority on state legislatures to appoint Electors using any method they might wish.

--Dan Ernst