Power for the People: Recognizing the Constitutional Right to Vote for President

Guest Blogger

Charlie Martel

Recently, I’ve argued for a federal constitutional right to vote for president. No court has yet held that citizens have an independent federal constitutional right to vote for president. In fact, the Supreme Court has twice held that under the Constitution, states have such “plenary power” to choose presidential electors that they can exclude citizens from voting for president. The Supreme Court cases rejecting the citizens’ right to vote for president are wrong for five reasons.

1. The Constitutional text guarantees the right. The five right to vote amendments, starting with Section 2 of the 14^th Amendment, create a universal right to vote for citizens 18 years old and older that includes the right to vote for president. Section 2 states that states that the “right to vote at any election for the choice of electors for President and Vice-President of the United States” cannot be “denied to any male inhabitants, being twenty-one years of age” of a state “or in any way abridged.” That provision imposes a never enforced penalty; congressional representation “shall be reduced” for states violating the right to vote.  This  is a clear statement of the right to vote for president. Moreover, the penalty demonstrates that the right is a legal obligation.

The key language was adopted just two days before Congress passed the Amendment. Congress rejected prior versions that did not refer to a right to vote for presidential elections. In sum, Congress chose to add the words “right to vote” to the Constitution in the Fourteenth Amendment, and Congress expressly included elections for presidential elections as protected in that right.

There is a counter-argument that the Fourteenth Amendment is limited to a right to vote in elections that the state may, but need not, allow. Only if a state holds an election need it provide a right to vote in that election. The counter-argument is based on the Fourteenth Amendment language “right to vote in any election for presidential electors.”

This argument is off the mark for several reasons. First, the reference to elections is a description not a limitation. Referring to a right to vote in any election does not establish state power not to have an election.  

Second, this argument is not reconcilable with the larger goals of the Congress that passed the Amendment. As Mark explains in his book Punish Treason, Reward Loyalty, Congress wanted to stop former Confederate leaders from restoring their political power in their states and nationally. It is hard to imagine that a Congress with those goals would go to the trouble of passing a right to vote amendment with a giant loophole for the former rebel states: states could decide not to have elections for the most important office in the country.

Third, there is nothing in the Fourteenth Amendment that expressly contains the “only if states decide to have an election for president is there a right to vote” principle. Given the historical context, with bitter disputes on federal power over states, state sovereignty, and suffrage for Black citizens, the decision of Congress to say there was a “right to vote in any election for presidential electors” cannot confer a right for states to call the whole thing off.  

Put simply, there isn’t really a right to vote if there’s no right to have an election.  Paraphrasing Professor Sherrilyn Ifill, the Fourteenth Amendment is not a suggestion.

The remaining four right to vote Amendments—the 15^th, 19^th, 24^th, and 26^th—grew the right to vote. Read together, the five right to vote amendments establish a constitutional right to vote for all U.S. citizens eighteen years old or older.  That right includes the right to vote for president established by the Fourteenth Amendment.

The four later amendments explicitly refer to “[t]he right of citizens of the United States to vote” and state that right “shall not be denied or abridged by the United States or by any State.”  The right referred to in the last four right to vote amendments is not limited to state created rights—it includes the independent, constitutionally created federal right to vote that belongs to “all citizens of the United States.” The federal right to vote, initially established in the Fourteenth Amendment, means the same thing in the remaining amendments. These amendments confirm that the Fourteenth Amendment must be construed as establishing a federal constitutional right to vote—including in presidential elections and over and above any state rights—that states cannot abridge or deny. 

2. The Plenary Power Cases are Wrong. The most recent statement of the plenary power theory was Bush v. Gore. The Bush Court relied on the Electoral College Clause and McPherson v. Blacker, the 1892 decision first stating that theory. The Bush Court stated that “the state legislature’s power to select the manner for appointing electors is plenary,” adding “[t]he individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college.” The Court later added that state legislatures can decide to pick electors (and the president) themselves rather than by citizens’ vote. 

The Court’s reasoning seems to preclude state legislatures from overruling citizen votes once a state decides to have citizen votes choose the electors, the radical interpretation of the plenary power theory embraced by the Trump coupsters. Still, it was historically wrong. 

The Bush Court did not mention the right to vote that is in the words of the five right to vote amendments in the Constitution. It did not mention the right to vote for president that is in two of those amendments (the Fourteenth and Twenty-Fourth). The Court’s embrace of the plenary power theory was dicta unnecessary to the Court’s ultimate decision; the issue of whether the legislature could take the vote from citizens was not before the Court. The same is true of McPherson. The plenary power reasoning was dicta unnecessary to resolution of the issue before the Court, which was whether states could base electoral college selection on a district-by-district basis. The most troubling problem with Bush was that it was the progeny of three Jim Crow era Court cases from the late 1800’s. The Jim Crow Court decisions undermining the then new rights in the post-Civil War amendments has been described by Reconstruction expert Eric Foner as a “sad chapter in the history . . . of democracy.” 

Finally, Bush is irreconcilable with Supreme Court authority properly recognizing that voting is a fundamental right that is “preservative of all rights.” To be fair to the late 19^th Century Court, the first of those cases was the 1886 decision in Yick Wo v. Hopkins, and this principle was reinforced by the Warren Court in Wesberry v. Sanders and Reynolds v. Sims. Here is what the Court said in Reynolds in affirming the constitutional right to vote: 

Undeniably the Constitution of the United States protects the right of all qualified citizens to vote, in state as well as in federal elections . . . It has been repeatedly recognized that all qualified voters have a constitutionally protected right to vote . . . [and] the right to have one's vote counted . . . and the right to put a ballot in a box. The right to vote can [not] be denied outright . . . . Obviously included within the right to choose, secured by the Constitution, is the right of qualified voters within a state to cast their ballots and have them counted. 

It makes no sense to then say that there is no constitutional right to vote in the most important election of all, the election of a president. But that is what Bush says. 

3. There is a “History and Tradition” of Citizens Voting for President. Justice Samuel Alito’s observation in Dobbs that history and tradition inform what rights are constitutionally protected was an agreement by citation with Justice Ruth Bader Ginsburg. One does not have to agree with Justice Alito’s application of the principle for the principle to be sound in theory. 

If history and tradition in constitutional analysis mean anything, they mean that citizens have a right to vote for president. Citizen voting was the rule in all but one state by 1832, and the rule in all states by 1868. Citizen election of presidents is more than history and tradition, it is at the heart of America’s identity as a nation. 

4. State legislative usurpation of presidential election would have a racist, sexist, and ageist impact. The American electorate is dramatically more diverse than state legislatures. If state legislatures do what the plenary power theory allows, presidents would be selected by a group of people disproportionally comprised of older white men. Appreciating that state legislators are elected and that their exercise of legislative duties is democratic, their usurpation of the right to vote is profoundly anti-democratic, and a violation of the spirit if not the letter of the 15^th, 19^th, and 26^th Amendments. 

5. Democracy is better than anti-democratic chaos. The January 6^th Committee found that a radical interpretation of the plenary power theory was at the heart of the effort to install Trump despite the fact that he lost the election. As noted before, the Trump team went even further than Bush allows. Bush allows state legislators to take over presidential selection from voters in future elections, but not to overrule citizens’ votes once a state decides citizen voting will choose the electors. The Trump coup was an orchestrated effort to do just that. 

It is true that the plenary power theory does not automatically lead to chaos and violence. That said, a commitment to the citizens’ right to vote for president creates a normative foundation for presidential election that is trusted, stable, peaceful, and historical. Once the notion of citizen democracy is abandoned, then anti-democratic presidential election becomes a chaotic, unstable, and dangerous road. In 2020, that road led to threats and blackmail of state and local legislators and elected officials, argument that the vice president can overrule the citizens and the electoral college itself, and finally, that a violent mob could overthrow the election results. 

Democracy is the better way. And it is the way required by the Constitution.  

Charlie Martel is Assistant Professor of Lawyering at Lewis and Clark School of Law. You can reach him by e-mail at charliemartel@lclark.edu.