We Need To Get Rid of the Constitutional Provision That Allows State Legislatures To Reverse Presidential Elections

A ticking time-bomb in the Constitution

Ever since the events of January 6, there’s been a lot of commentary, some well grounded, some overwrought, about whether a party (most likely the Republicans) could actually steal an American presidential election by refusing to abide by the result. And this commentary had special resonance because for years, on voting rights issues, Democrats had said that Republicans were trying to undermine democracy in various ways. The thought of a steal fit right into that narrative.

But there’s a disconnect between the straightforward “steal” scenario and what Democrats suggest we do about it. The most common argument leads into some sort of advocacy for the For The People Act or the John Lewis Voting Rights Act. But these bills actually do nothing to address the mechanism by which someone could steal an election. Just like Republicans are overly concerned with phantom voter fraud, Democrats spend a lot of time putting forth theories about how tons of votes are being suppressed in this country; in fact, other than prohibitions on felons voting (which are truly outrageous, but are also both longstanding and suppress both parties’ voters), most voter suppression in the US is decidedly on the micro scale; for instance, nobody seems to have much evidence that photo ID requirements and the like are really preventing large numbers of people from voting.

Meanwhile, there is a perfectly legal way that either party could steal the election, and the Republicans have said several times, dating back to 2000 and the Bush-Gore contest, that they reserve the right to use it. The problem is, it’s in the Constitution, and thus there’s no way to amend it without a bipartisan consensus. That means Republicans have to admit that it’s a problem, which they aren’t doing, and it also means that Democrats would have to commit to trying to advance an election reform in a bipartisan manner, which is not what they have been interested in doing lately (they fundraise a lot off of party line voting rights appeals).

Here’s how it works. The Constitution does not guarantee your right to vote for President. Instead, it says that states get a certain number of electoral votes based on their representation in the two houses of Congress, and grants them the power to determine how those votes will be allocated. In practice, that almost always means a winner take all general election within the state. (Two states, Nebraska and Maine, do it a bit differently, having a statewide election for 2 electoral votes and elections in each congressional district for a single electoral vote.)

But, none of that is required by the Constitution. The Constitution just says state legislatures have the right to determine the manner in which electors are selected. Which means, you guessed it- a state legislature can simply select the electors itself, or create a panel or commission to do it, or delegate it to the governor, or whatever. So if state legislature X has a Republican majority, it can engineer the selection process to ensure the electoral votes go to the Republican presidential candidate even if the voters of that state vote for the Democrat. In a close election, one or a few state legislatures can simply steal the election and award the electoral vote loser the presidency.

“But”, I can hear you say, “won’t the Supreme Court reject this?” Well, no. In 2000, this was actually kinda-sorta litigated, and even the liberals on the Court agreed that citizens had no constitutional right to vote for President (this was part of Bush v. Gore). In any event, SCOTUS has gotten more textualist, and conservative, since then, and the arguments against this position aren’t very good anyway. A court would basically have to imply some limit, not in the constitutional text, on the power of a state legislature to decide how to allocate electoral votes, and it would need to do so in the context of the highest partisan stakes imaginable. I think many judges, no matter what their politics, would look at this and say “the Constitution is clear that the state legislature decides how the electors are picked and the Supreme Court doesn’t”. In other words, even if you favor court packing, your hypothetical 7-6 Democratic Court might still say “sorry, this is legal”.

Which means, we have a ticking time bomb in the Constitution, and while we spend a ton of time debating fanciful threats to democracy and using “threats to democracy” as a piece of political rhetoric, there is an actual, live constitutional procedure that one party has threatened to use that would strip the voters of the power to choose the President. Don’t you think that maybe folks need to start educating the public about this? I hardly think that a lot of low information voters are going to react to learning about this with “go ahead, have the state legislature overrule my presidential vote”. People simply do not know this exists, because it is in the interests of neither party’s messaging machine to tell them about this.

At any rate, the solution is easy to conceive, even if it is difficult to imagine how to enact it: the Constitution should be amended to provide that each state’s (and the District of Columbia’s) voters have the right to vote in an election to select presidential electors, and that no state shall select a manner of choosing electoral votes other than by general election.

And while I concede I don’t know exactly how this could pass, I do know that for it to pass, influential people need to start talking about this precise scenario, whether or not there is any short term political gain in doing so.