Thursday, November 19, 2020

Section Two of the Fourteenth Amendment and Presidential Electors

Gerard N. Magliocca

To build upon my prior post about the constitutional doubts that exist about the authority of a state legislature to appoint presidential electors after the election was held in a manner inconsistent with the popular vote in that state, consider Section Two of Fourteenth Amendment:

[W]hen the right to vote at any election for the choice of electors for President and Vice President of the United States . . . is denied to any of the male inhabitants of such state, being  and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

The most sensible reading of this provision is that a state legislature that usurps the popular vote for presidential electors in a state forfeits the state's right to representation in the House of Representatives and (arguably) in the Electoral College itself except for the two votes each state gets for its two Senators. Such a state legislature would be denying the right to vote to everyone in the state by treating the election as a non-binding beauty contest when the people voted on the assumption that their vote was binding.

Granted, you could say that Section Two permits a state legislature to appoint presidential electors after the election in defiance of the people--the state must just accept the representation penalty. Maybe, but the penalty is severe. More broadly, the point is that state legislatures do not have plenary authority over the appointment of presidential electors after the election is held. Either they face a harsh penalty or other independent constitutional provisions should be read as prohibiting such an action entirely. States test these constitutional limits at their peril.


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