The Second Coming of the Second Section: The Fourteenth Amendment and Presidential Elections

Abstract

After the 2020 presidential election, supporters of the losing candidate pressured state legislatures in key battleground states to overturn the results of their states’ popular presidential elections. In the run-up to the 2024 presidential election, concerns about the potential for state legislatures to subvert popular elections have resurfaced. State legislatures may assert that a state’s elected lawmakers have the constitutional authority to 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 this threat to the integrity of presidential elections. While the Penalty Clause of the Fourteenth Amendment has long lain dormant, it provides vital and distinct protections, and it is the appropriate vehicle for addressing the threat of state legislative usurpation of presidential elections. Whether or not Article II 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