The newly-circulating scheme to displace America’s voters in choosing the President next time, handing that over to state legislatures, has a good many interlocking parts. A failure of any one of them could doom the entire project. The theory does have many critics, and they strongly challenge what they consider to be its weak parts. To the critics, the scheme won’t work and, they argue, it is unconstitutional.
Just as the theory has its origins in the language of the original Constitution, so does its criticism. Articles I and II assign a significant role to state legislatures in the conduct of federal elections, including those for the presidency, and separately assign tasks to Congress in the process.
The system has worked in basically the same way since 1832. Because the Constitution’s clauses are not self-defining, all of the political and legal actors have opportunities to interpret them, and controversy regularly erupts. The system had its severest tests in the Tilden-Hayes contest in 1876 and in the Bush-Gore contest in 2000, and it survived both – although, one might say, just barely.
Along the way, the Supreme Court has had its own role in monitoring the process. As recently as last December and in February, the Justices took significant actions in rebuffing the efforts of former President Trump and his allies to challenge President Biden’s 2020 victory. The most serious loss for the Trump challenge was the Court’s declaration that one state cannot challenge another’s presidential voting outcome.
And, as recently as July of last year, the Court reaffirmed the basic role that state legislatures have in presidential elections. None of the Court’s recent actions, however, settled the constitutionality of the sweeping claims that conservative activists are now making about state legislatures’ power to displace the voters’ choice. Those broader claims, however, could reach the Court if the theory succeeds anywhere, in what would be, in essence, a constitutional coup.
Two prior articles in this space analyzed the prospect of such a coup and how it was intended, by those who support it, to work in real-world terms. It is appropriate, then, to examine more closely the arguments that critics are making as they seek to prevent such a coup.
Basic constitutional challenges
It has been 129 years since a Supreme Court majority declared explicitly that state legislatures have “plenary” power under the original Constitution to decide how to conduct presidential elections, and may take for themselves the right to choose the electors who will complete the task in the Electoral College.
Since then, aside from the embrace of that notion by three Justices as they took part in the Bush v. Gore decision in 2000 and the seeming embrace of it this year by three Justices in the months after the Trump-Biden contest, a majority has not relied upon the 1892 precedent or held it to still be binding.
In the meantime, there have been broad constitutional (and congressional) developments that have made the right to vote far more secure than it was in the late 19th Century – especially those rights as exercised by women, minorities, and young people. (Those are the very groups whose right to vote appears to be most at risk in the new Republican-led effort to enhance the role of state legislatures and to make voting more difficult.)
It would be a serious setback for those rights and for American democracy itself, critics of the legislative choice theory argue, if the old precedent were to be reaffirmed by the Court, virtually clearing a new path for a constitutional coup.
Potentially standing in the way of a constitutional coup led by state legislatures are other parts of the Constitution, the amendments. The Fifteenth Amendment guarantees voting rights for racial majorities, the Nineteenth Amendment does so for women, and the Twenty-Sixth Amendment assures it for 18, 19 and 20 year olds. There also has been the constitutional development of the one-person, one-vote principle of voter equality, which has been interpreted by the Supreme Court not only to protect the right to cast a ballot but also the right to have it counted fairly.
There is another constitutional provision that might impose a drastic remedy for the takeover of the choice by state legislatures, provided that a takeover would be found to have denied the people their constitutional right to vote. That is the provision in the 14th Amendment that a state may have some of its representation in the House of Representatives (and some of its electoral votes) taken away, in proportion to the number of people whose vote for federal officers has been denied or abridged. Put into the Constitution in 1868, it was designed to assure that the newly freed slaves would not be denied voting rights. It has never been enforced against any state, partly because of uncertainty about how to interpret it. Still, it remains there as a potential additional check on the takeover theory.
Elsewhere in the 14th Amendment, there is an open-ended guarantee of equality, declaring that it cannot be taken away except by “due process” – that is, by legally valid means. That clause lies behind the Supreme Court’s many rulings against drawing new election district boundaries in ways that exclude or dilute the right to vote for minorities. It, too, has never been applied to the kind of action contemplated by the legislative takeover theory, which remains untried.
Another potent constitutional argument lies in the mere fact of the continuity, over many decades, of the practice of leaving the initial choice of the presidency to the people expressing their will at the polls. A record of that duration does have deep constitutional relevance, for Justices of all philosophical beliefs. Indeed, the Supreme Court commented favorably on that tradition in a ruling just last year.
Congressional checks on a legislative coup
On the congressional front, the enactment of the Voting Rights Act of 1965, in particular, has greatly enhanced democratic opportunity in America, especially for minorities. That remains true to a degree, although the conservative-dominated Supreme Court has repeatedly limited the effectiveness of the key parts of the 1965 Act (especially in decisions in 2013 and earlier this year).
There is now considerable uncertainty that the current Congress, almost evenly split between the two main political parties in both the House and Senate and riven by partisan polarization, would be prepared to take any new action to head off a constitutional coup. However, a response to an actual withdrawal of the people’s role by one or more state legislatures might yet be politically irresistible.
An already existing federal law may provide a genuine check on such a coup. Passed in 1887, in reaction to the Tilden-Hayes dispute in the 1876 election, that law still governs how the Electoral College vote occurs, and how electoral votes are counted. This is the law that was being carried out when a violent mob invaded the Capitol on January 6, attempting though unsuccessfully to halt the vote-counting ritual.
That law provides the mechanism for Congress to decide disputes over how electoral votes were cast and counted. Moreover, there are distinct negative effects for a state that does not finish its choice of electors by deadlines set in that law. (Although there is a loophole in the section to suspend the deadline for a state to verify how its electors were named and how they voted, the occasion has never arisen to use that loophole, so its practical effect is uncertain.)
If the next Congress remains controlled by Democrats, any state that sends in a slate of electors chosen by the state legislature instead of by the people could be subject to a veto in Congress. (That threat, of course, might be lessened or even eliminated if the Republicans win back control of both chambers.)
The timing requirement
Because the Constitution gives Congress the authority to set the date for the presidential election, that probably makes it necessary for any state legislature seeking to take control of the choice of presidential electors to pass a new law to implement that approach well before that date (in 2024, that date will be November 5). With opposition to the theory spreading, time could be a serious restraint on its implementation.
The role of governors and state courts
While the “time, place and manner” for holding presidential elections is governed by state laws passed by the state legislatures, governors may retain the power under state law to veto any effort to take away the people’s right to choose presidential electors. In addition, state constitutions may also protect voting rights in a way that would limit a given state legislature’s options to do away with popular voting.
Both kinds of restraint are challenged by the adherents of the legislative choice theory, so whether a governor or a state court could actually stop the implementation of that theory in a particular state remains an open legal question. The Supreme Court explicitly refused to decide that question in a Pennsylvania case brought by Trump’s allies this year
In the meantime, though, governors and state courts probably do retain the power at least to attempt to thwart any withdrawal of the popular vote. The old law that governs the counting of the electoral votes does have provisions that assure a significant role in the process for state governors, even if state legislatures tried to shut them out of the process. That remains in the law although it has never been directly enforced against a state legislature.
Overall, it is plain that there are explicit ways to try to head off or to undo a legislative takeover of the presidential vote, but it is also plain that several other existing ways are untried, latent or only implied. Thus, critics of such a coup understand that they must also rely upon civic education and citizen activism if they are to block the maneuver. In reality, it seems that, unless this is checked at the state legislative level, either when those legislators are being elected or when they go into session, the opposition to it could turn out to be futile.
