The Second Coming of the Second Section

Abstract

After the 2020 presidential election, some state legislators signaled a desire to pass legislation overturning the results of popular presidential elections. In the runup to the 2024 presidential election, these calls have intensified. The Supreme Court last term in Moore v. Harper rejected an extreme form of the independent state legislature theory that would give state legislatures carte blanche to make election laws regardless of state law constraints. But the Court did not address whether a state legislature may overturn a popular election if it acts within its authority under state law. State legislatures may rely on a theory of Article I to assert that a state’s elected lawmakers may choose the state’s Electors for the Electoral College without—or in contravention of the result of—a popular election. We demonstrate that the Fourteenth Amendment provides powerful protection against these threats to democracy. Many scholars have claimed that the Fifteenth Amendment repealed the Fourteenth Amendment’s election law provisions. While the election law provisions of the Fourteenth Amendment have long lain dormant, they provide vital and distinct protections, and they are the appropriate vehicle for addressing the latest incursion on suffrage. Whether or not Article I grants state legislatures power over popular elections, Section 2 of the Fourteenth Amendment, for all practical purposes, ensures that states will provide a popular election for selecting Electors in presidential elections. The weight of recent events makes obvious the importance of clear rules safeguarding the integrity of democracy in America. Curiously, however, scholars have paid little attention to Section 2 of the Fourteenth Amendment and its contemporary relevance. When scholars have considered it, they have typically construed it as a grant of authority enabling Congress to pass legislation. We argue that Section 2 is self-executing and no congressional action is needed for Section 2 to prevent state legislatures from circumventing popular elections.

Keywords: election law, voting rights, presidential elections, Fourteenth Amendment, federalism, self-executing clause