Rick P. has posted something that I’ve been puzzling over for a while, and I’m glad he did so: there’s a formal legal distinction between the “Legislature Thereof Clauses,” more popularly known as the “independent state legislature doctrine” theory, and this concept that I’ll unhelpfully coin as the “Plenary Presidential Elector Selection Power Doctrine.” This doctrine has never been exercised in any form (with a caveat about Florida in 2000, which I’ll get to at the end), and it has never (to my knowledge) been defended in any academic literature. So where did it come from?

Briefly, the Constitution gives the State “Legislature” the power to “direct” the “manner” of “appoint[ing]” presidential electors, and the “manner” of holding congressional elections. As the “independent state legislature doctrine” goes, that means the legislature–to the exclusion of the governor, the state courts, and even the state constitution–sets the rules. There are nuances about how far it might go, and, of course, there are sharp detractors on the theory (Rick H. highlights some of his recent concerns here).

But the Plenary Presidential Elector Selection Power Doctrine is different. In its weakest and (mostly) uncontroversial form (even if unpopular), it acknowledges that the state legislature has the power to directly choose presidential electors (most recently done in Colorado in 1876, but out of vogue since 1824). That’s, simply put, the original public meaning of the Presidential Electors Clause.

In its strongest form, however, it argues that the state legislature may “at any time” retake the power to choose presidential electors–even after the election has been held. That’s a remarkable claim, because once the state legislature, exercising its power under the Clause, directs the people to choose presidential electors, things change. And they change for several reasons.

First, Congress has the power to “determine the time of choosing the electors.” It has done so: the first Tuesday after the first Monday in November. Article II does not give states the power to choose them after that date.

Second, Congress has a mechanism in federal law for the event of a “failed election,” but that is hardly a constitutional claim, and it’s quite unclear that the legislature has any power to exercise it absent pre-election enabling legislation.

Third, the legislature would be ignoring its own rules if it reclaimed that power after Election Day. All states designate how to canvass the votes, how to contest an election, and who is in charge of that process. The legislature hasn’t designated itself for that role (and none really has come close recently). Changing the rules after the election risks major Due Process Clause concerns.

Given all these issues, where did this “strong” notion of the Plenary Presidential Elector Selection Power Doctrine come from? Again, it’s not in any academic literature I’ve seen. It appears to derive from a misreading of McPherson v. Blacker, a 1892 Supreme Court case on the selection of presidential electors. Michigan had switched from an at-large system of choosing electors to a district-based one. The Court noted that “it is seen that from the formation of the government until now the practical construction of the clause has conceded plenary power to the state legislatures in the matter of the appointment of electors.” “Plenary” being the operative word–by district or at-large; by the people or by the legislature.

And then comes this phrase from the opinion: “Whatever provisions may be made by statute, or by the state constitution, to choose electors by the people, there 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.”

Wow! That sounds like an incredible power. Until you read the context.

The Court here is quoting from legislative history, a 1874 Senate report. The question in Congress was whether Congress as an institution could compel states to award presidential electors by district. (And here, Congress invokes a version of the independent state legislature doctrine: the state legislature can resume the choosing of electors if it so desires, even if it has been previously given to the people.)

But the “at any time” language has been abused from its original context. It was whether Congress (or some pre-existing state law) could take the power away from the state legislature; it was not about whether the state legislature could pick a new method after Election Day.

If the legislature today (in 2022) resumes power over the choosing of electors, it could not retroactively, say, choose Kennedy or Nixon electors for the 1960 election. That election is over. It occurred pursuant to laws that took place at the time, on the date chosen by Congress. But if the legislature wants to pick that power back up and run with it for 2024, it is within its power (even if no legislature since Colorado in 1876 has done so).

For Plenary Presidential Elector Selection Power Doctrine proponents, however, the language from McPherson quoting a congressional report citing “at any time,” joined with “plenary,” leads to this mystical power to a legislature being able to do whatever it wants, whenever it wants, after an election.

The one caveat about a potential exercise of this power is Florida in 2000. The Secretary of State submitted a certificate of ascertainment to the Archivist in November 2000 identifying the Bush electors as the winning slate, the legislature was nervous as the “safe harbor” deadline approached and judicial resolution remained unclear. It then began the process in December 2000 of reclaiming that power (in a concurrent resolution, writing, “the manner that the Florida Legislature directs that electors for President and Vice President of the United States of America be appointed in the year 2000 is by appointment by the Florida Legislature”). They planned to appoint the same slate of electors as those whom the Secretary of State had already certified as the winner. But they attempted to do so independently of the election that had just occurred. (Attorney Roger Magnuson pressed for this solution to the legislature as he saw weaknesses in “ratifying” what the Secretary of State had done.) Florida never did so (although one chamber passed the resolution). It would have created complications in Congress if it did. And even here, the legislature was effectively ratifying the Secretary of State’s decision rather than revisiting it.

Again, I think this is not a well-founded legal power. I think proper Electoral Count Act reform can help clean up the statutory ambiguities. But it also highlights the limitations of statutory fixes: if someone, somewhere is arguing that the Constitution creates this tremendous empowerment of legislatures, no statutory fix can solve that. It requires some careful legal analysis to identify the weaknesses of the argument and the proper scope of the constitutional authority, beginning with Congress’s power to determine the time of choosing electors.