[EL] I never noticed before that 14th amendment, sec. 2, specifically refers to voting for president

[John Koza]

Section 2 of the 14th Amendment does not require a state to give its voters (in contrast, say, to the state legislature) the right to vote directly for the state’s presidential electors.  

Instead, it provides a specific potential penalty (namely reduced congressional representation) if the right to vote of certain persons is “denied” or “abridged” by a state. 

 

The fact that section 2 of the 14th Amendment does not give the voters the right to vote directly for any specific office (in particular, presidential electors) is made clear by the inclusion of the phrase “judicial officers of a state” in the Amendment.  At the time of formulation, debate, and ratification of the 14th Amendment, judges were not elected by the voters in many states (and, indeed, this practice continues today).  

 

Moreover, the historical context of the 14th Amendment shows that it was never intended to prevent state legislatures from appointing presidential electors.  Appointment of presidential electors by state legislatures was a familiar occurrence before and after the period of the Amendment’s formulation in Congress and its ratification by the state legislatures.  The South Carolina legislature appointed presidential electors without a vote by the people in 1860. The Florida legislature did so in the 1868 election—less than four months after ratification of the Amendment.  The Colorado legislature appointed presidential electors without a vote by the people in 1876.  In fact, the congressional act providing for Colorado’s admission to the Union in 1876 specifically acknowledged that the Colorado legislature would appoint the state’s presidential electors for the 1876 election.

If anyone thought the 14th Amendment required statewide popular election of presidential electors, that legal argument would certainly have been vigorously advanced during the contentious dispute over the 1876 presidential election.  If the Colorado legislature’s appointment of its three presidential electors (favoring Republican candidate Rutherford B. Hayes) were invalid, Democratic candidate Samuel J. Tilden would have had the constitutionally required “majority of the whole number of Electors appointed”[1] and, therefore, would have become President—even after the Electoral Commission ruled against Tilden concerning the contested electoral votes of Louisiana, Florida, and South Carolina.   However, neither Tilden nor his supporters ever raised this argument in 1876.

 

In 1892, the losing attorney (F.A. Baker) in McPherson v. Blacker strenuously argued before the U.S. Supreme Court that section 2 of the 14th Amendment requires the states to conduct a popular election for presidential electors using the winner-take-all method for electing them.  However, the U.S. Supreme Court unanimously ruled: 

“The constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket [i.e., the ‘winner-take-all’ rule], nor that the majority of those who exercise the elective franchise can alone choose the electors.” (146 U.S. 1 at 27)

In 2000, the U.S. Supreme Court wrote in Bush v. Gore: 

“The 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. U.S. Const., Art. II, §1. 

“This is the source for the statement in McPherson v. Blacker … that the State legislature’s power to select the manner for appointing electors is plenary.” … 

“There is no difference between the two sides of the present controversy on these basic propositions.” (531 U.S. 98 at 104)

For reference, section 2 of the 14th Amendment reads:

“Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” [Emphasis added] 

 

 

 

Dr. John R. Koza, Chair

National Popular Vote

Box 1441

Los Altos Hills, California 94023

Phone: 650-941-0336

Email:  <mailto:john at johnkoza.com> john at johnkoza.com

URL:  <http://www.nationalpopularvote.com/> www.NationalPopularVote.com

 

From: Law-election <law-election-bounces at department-lists.uci.edu> On Behalf Of Richard Winger
Sent: Monday, December 20, 2021 9:27 AM
To: law-election at uci.edu
Subject: [EL] I never noticed before that 14th amendment, sec. 2, specifically refers to voting for president

 

I have long been aware of the neglected section 2 of the 14th amendment, which says that states that deny the vote lose US House seats in proportion to how many residents lose the right to vote.

 

But I had never noticed the precise wording, which refers specifically to voting for electors for president of the U.S.  "But when the right to vote at any election for the choice of electors for President and Vice President of the United States...is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced..."

 

It seems to me this clearly requires that states require a popular vote for electors for president and vice-president.

 

Are there any writings by scholars about this?  

 

Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147


  _____  

[1] The Constitution does not require an absolute majority of the electoral votes to become President but only an absolute majority of the electoral votes “appointed.” There have been occasional cases when a state failed to appoint its presidential electors. For example, New York did not in 1789 because the legislature could not agree on how to appoint them. Notably, the Southern states did not appoint presidential electors in 1864. 

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