Look to 14th Amendment to check GOP efforts to subvert popular vote

Given that a clear majority of Republican voters believe that Joe Biden’s presidential victory last year was fraudulent, it is no surprise that Republican-controlled state legislatures are enacting laws that change how votes are cast and counted. Some even would have state legislatures select their Electoral College electors, thereby ignoring that state’s popular vote won by the Democratic presidential candidate.

Because Republicans control 30 state legislatures, these efforts obviously are meant to tilt — and likely decide — the outcome of the 2024 presidential election.

Under these circumstances, everyone who believes in the popular vote — the bedrock of any democracy — should read and heed the guarantee articulated in Section 2 of the Fourteenth Amendment. That almost-forgotten constitutional text specifically provides that if state legislatures interfere with the popular vote for the Electoral College electors, such states are to be punished by having the size of their congressional delegation reduced. When a state loses House seats, it thereby also loses Electoral College votes.

The 39th Congress wrote the Fourteenth Amendment in the wake of the Civil War, when the terms for readmission of the states that seceded were entirely unsettled and  passionately debated. The drafters of Section 2 conditioned state readmission on a specific guarantee that, for numerous public offices, states could not interfere with the vote by all those eligible: when the Fourteenth Amendment was ratified in 1868, this included Black men for the first time, as well as all other male citizens at least 21 years old “except for participation in rebellion, or other crime.” Their votes, the Constitution now proclaimed, could not thereafter be “denied … or in any way abridged.”

In fact,  the first office specified within Section 2’s guarantee of an unimpeded popular vote was in “any election for the choice of electors for President and Vice President of the United States.” And Section 2 dictated an explicit penalty: If a state “denied” or “in any way abridged” votes by any eligible voters, that stateʻs representation “shall be reduced.”

This clause has never been invoked.

Clearly it should have been used when states used multiple ways — some ingenious, a great many brutal — to block the votes of Black citizens over many decades. The Voting Rights Act of 1965 was badly needed to address systemic barriers to free and fair voting processes. Recently, however, the U.S. Supreme Court has demonstrated remarkable unconcern about burdens on voting — not least by refusing to intervene even against the most overt political gerrymandering. A majority has also invalidated or severely limited several key provisions of the Voting Rights Act. 

It is noteworthy, however, that the Framers of the Constitution — following the fundamental principle that just powers derive from the consent of the governed — repeatedly affirmed that the people are to choose the electors. They so declared in the Federalist Papers and through the state ratifying conventions. Nonetheless, when Thomas Jefferson was elected president in 1800, John Adams sought to cling to power by relying on lame-duck state legislators, some elected as early as 1796. Adams’s strategy was roundly condemned as unconstitutional, and in several states voters directly rejected it.

At that time, several state legislatures chose their electors. By the mid-1820s, however, this practice was denounced as contrary to the Founders’ intent and was abandoned. Only South Carolina held out, yet finally acknowledged in 1865 that this had been a “gross error” and “usurpation.” A plan in 1868 to revive the practice in southern states was similarly denounced. The national conclusion was that the people elect the electors. Nonetheless,  there is a clear and present danger that state legislators in the 21^st Century will assert power to ignore the popular vote, as some have begun to do. It has become vital to underscore our nation’s commitment to direct popular voting.

We need ways to repulse the anti-democratic ideas currently eviscerating our democratic commitments.

Rejection of the so-called “independent state legislature doctrine” must not be left only to federal court judges. The House could immediately adopt a resolution that it will not seat Representatives from states that abridge the right of the people to vote for president. State courts might enforce voting rights embedded in their state constitutions. And Congress should invoke the power granted it through the Enforcement Clauses of the Fourteenth and Fifteenth Amendments — including the power not to count electoral votes — and thereby honor the broadening of the popular franchise these amendments provided, and specifically embodied in Section 2.

The people’s authority is very much at risk right now. Choosing our national leaders surely must remain “of the people, by the people, for the people.”

Mark Bohnhorst is a retired public sector attorney with 24 years of service in the University of Minnesota’s Office of General Counsel. Most recently, Bohnhorst has researched, written about, and advocated for presidential election reform.

Aviam Soifer recently completed 17 years as dean of the William S. Richardson School of Law at the University of Hawai’i, after five years as dean of the Boston College Law School. He has been teaching and writing about constitutional law and legal history for over 40 years, often focusing on the post-Civil War period.

This column is adapted from “Presidential Election Reform: A Current National Imperative,” to be published in 26 Lewis & Clark L. Rev. (June 2022).