Donald Trump’s attempts to overturn the results of the 2020 presidential election have not only failed, but some of them have also been based on a misinterpretation of the United States Constitution, as our up-to-date analysis claimsThe relevant constitutional provision dates from the period immediately after the Civil War, and contemporaries have recognized it as a key safeguard for American democracy.
In November 2020, when it became clear that Trump had lost the popular vote and would lose the Electoral College, Trump and his supporters organized pressure campaign convince legislatures in several states whose citizens voted for Joe Biden to appoint electors to support Trump’s re-election in the Electoral College vote.
Trump and his allies have contacted Republican lawmakers in Michigan, Georgia and Pennsylvania to urge state legislatures to overturn the results of the general election. Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, sent emails to Arizona Republican Party legislatorsencouraging them to “ensure the election of a clean slate of electors.”
These efforts were based on the Constitution’s provision in Article II, Section 1, which states: “Each State shall appoint, in such a manner as its legislator may prescribea certain number of electors.” Trump and his supporters wanted state legislators to reject the votes of their citizens and simply appoint electors who would support Trump’s re-election.
As part of their actions, Trump and his supporters claimed that The Constitution allows for state legislatures Down directly select the electoral list without a popular vote.
But they were wrong. There was already a safeguard in place – and still is – to prevent this approach from being used undermine the 2024 presidential election.
An effort to protect voters’ power
In almost every state the candidate who receives the most votes because the office of president receives all of a state’s electoral votes. Nebraska and Maine have minor exceptions – however, those states’ laws still award a majority of the electoral votes to the person who wins the popular vote across the state.
In the slow 1860s, when the Fourteenth Amendment was written and ratified, the same thing was in effect – although the right to vote was until 1920 restricted to menand states often denied or restricted the right of some citizens, especially racial minorities, to vote. After the Civil War, Congress sought to remove barriers to voting for black men, especially in the South.
In 1866, when Congress was debating the 14th Amendment, its framers wrote Section 2 into an attempt to force reluctant white Southerners to allow black men to vote.
Section 2 of the Fourteenth Amendment provides that “when the right to vote in any election in case of choosing electors for President and Vice President of the United States… shall be denied… or in any manner abridged… the basis of representation” for such State in the House of Representatives of the United States “shall be reduced” in proportion to the abridgement.
So if a state deprives any of its citizens of the right to vote, it will immediately lose the same percentage of seats in the House of Representatives as a percentage of people whose right to vote was taken away.
Just a few weeks after its ratification, this provision encountered its first challenge.
Florida’s Republican-dominated Reconstruction Legislature they decided to elect presidential electors without public participationThe Democrats—then the party that supported disenfranchising black men—were furious. Many Southern newspaper reporters, still furious over the ratification of the 14th Amendment, saw an opportunity to turn the amendment against its Republican authors.
“The uncomplicated conclusion is that if in any country “The choice of the presidential electors being taken from the people and committed to the legislature, the whole number of the citizens of the state… being excluded,” wrote the Charleston Daily News on August 10, 1868.
This was not an uncommon or local sight: nine days later the Anderson Intelligencer, a South Carolina newspaper, published a miniature article attributed to the New York Herald that similarly declared:
“When the right to vote in a presidential election is denied to all voters in a state“in such a state the basis of representation must be reduced by the number of all voters, which means that there is no basis of representation at all.”
These articles have no legal force, but reflect a common, albeit controversial, understanding the provisions of the 14th Amendment when it was passed. No one filed a legal challenge, so no court had a chance to issue an opinion. And the Republican-dominated Congress had no qualms about accepting the electoral votes — even without a popular vote — for the Republican presidential candidate.
The right to have your vote counted
In the wake of the 2020 election, Congress took steps to make it clear that electors must be the ones to choose presidential electors. Legislation passed in 2022 revised the federal law governing the selection of electors to specify that state legislatures must determine the method by which electors in their state will be chosen before Election Day and this cannot be changed after the votes are cast.
This clarification is consistent with, and in fact strengthens, the provisions of Section 2 of the 14th Amendment.
As our analysis notes, if a state legislature were to directly select electors, it would disenfranchise all voters in the state. The right to vote is, after all, the right to have one’s vote counted, not the right to have one’s preferred candidate win.
So even if the Legislature were to select a slate of electors that received significant popular support, the act of the Legislature making the selection would abridge the rights of every voter in the state. Disenfranchisement depends on whether the people or the Legislature select the electors, not on which electors are selected.
If all voters in a state have been disqualified from voting, Section 2 requires that: the state’s representation in the House of Representatives will be immediately and automatically reduced to zeroThe Constitution elsewhere specifies that each state’s representation in the Electoral College is total of state House and Senate delegations.
This way, if a state has no representatives in the House of Representatives, it will only have two presidential electors, making its impact on the presidential election negligible and largely irrelevant.
The only exception
To date, aside from Florida in 1868, this is the only time a state legislature has chosen presidential electors without public participation. came in 1876.
Electoral fraud, political violence and voter intimidation questioned the integrity of the 1876 presidential election.The constitution of Colorado, recently admitted as a state, provided that the legislature would choose the state’s presidential electors without a popular vote in 1876.. In the shadow of an extremely close election, the selection of Colorado’s presidential electors by the Legislature sparked relatively little attention or debate.
The general conclusion is that the Southern newspapers of 1868 read the text of Section 2 correctly. Its authors may have been cynical opportunists trying to defend an indefensible racist hierarchy, but their reading of the text is correct.
The plain meaning of Section 2 is clear and imposes severe penalties if a state does not allow its citizens to vote for presidential electors. The Fourteenth Amendment continues to protect American democracy more than 150 years after its ratification.
This article was reprinted from Conversation under the Creative Commons license. Read original article.
