Gaping Gaps in the History of the Independent State Legislature Doctrine: McPherson v. Blacker, Usurpation, and the Right of the People to Choose Their President

Authors

Mark Bonhorst
Michael W. Fitzgerald
Aviam Soifer

Publication Information

49 Mitchell Hamline Law Review 257 (2023)

Abstract

The so-called independent state legislature doctrine was the jurisprudential heart of the effort by former President Trump and allies to overturn the 2020 presidential election and was featured in the briefs for Texas v. Pennsylvania. The idea that state legislatures might have power to intervene against the popular vote for the electoral college helped animate the attack on the Capitol on January 6, 2021. Frighteningly, at the very end of the 2021 Term, the Supreme Court accepted review of a North Carolina case—Moore v. Harper—in which Republican Party legislators invoked the independent state legislature doctrine to contend that state legislators are at liberty to create entirely partisan congressional districts, freed from constraints in the North Carolina Constitution as interpreted by the state’s judiciary.1 A victory by these legislators would directly implicate their parallel power to reject or ignore any state’s popular vote for President. The independent state legislature doctrine rests on dubious dicta in McPherson v. Blacker.2 McPherson concluded that “plenary power” over the appointment of presidential electors was “conceded” to state legislatures through the “practical construction” of the Constitution.3 Yet the Court excluded, with almost surgical precision, extensive historical evidence that shows that the legislative election of electors was not intended by the Framers nor by those who ratified the Constitution.4 Further, such legislative election authority was vigorously contested whenever it mattered—in the presidential elections in 1800, 1812, and 1824—and was soon thereafter abandoned in the face of the claim that this doctrine was a “usurpation.”5 The doctrine was more emphatically rejected following the Civil War, including through Section 2 of the Fourteenth Amendment. Nonetheless, Bush v. Gore repeated McPherson’s historical amnesia and provoked a doctrine that directly threatened such core democratic values as state court authority to interpret state constitutions and the power of the people to elect the President of the United States.

Recommended Citation

Bonhorst, Mark; Fitzgerald, Michael W.; and Soifer, Aviam (2023) "Gaping Gaps in the History of the Independent State Legislature Doctrine: McPherson v. Blacker, Usurpation, and the Right of the People to Choose Their President," Mitchell Hamline Law Review: Vol. 49: Iss. 1, Article 10.
Available at: https://open.mitchellhamline.edu/mhlr/vol49/iss1/10