How the 14th Amendment prevents state legislatures from manipulating presidential elections

Donald Trump's efforts to overturn the result of the 2020 presidential election not only failed, but were also based in part on a misinterpretation of the U.S. Constitution, as our new analysis shows. The relevant constitutional provision dates from shortly after the Civil War and was recognized by contemporaries as a central protection of American democracy.

In November 2020, when it became clear that Trump had lost the majority of the popular vote and would also lose the electoral votes, Trump and his supporters launched a pressure campaign to persuade the legislatures of several states whose citizens had voted for Joe Biden to appoint electors who would support Trump's re-election in the Electoral College votes.

Trump and his allies contacted Republican lawmakers in Michigan, Georgia and Pennsylvania to urge state legislatures to overturn the popular vote. Ginni Thomas, wife of Supreme Court Justice Clarence Thomas, wrote emails to Republican lawmakers in Arizona urging them to “ensure that a clean slate of electors is chosen.”

This effort relied on a provision of the Constitution in Article II, Section 1, which states: “Each state shall appoint a number of electors in such manner as the state legislature shall direct.” Trump and his supporters wanted state legislatures to discard the votes of their citizens and simply appoint electors who would support Trump’s re-election.

As part of their efforts, Trump and his supporters claimed that the Constitution allows state legislatures to directly select their electoral colleges without a popular vote.

But they were wrong. A safeguard was already in place – and remains in place today – to prevent this approach from being used to undermine the 2024 presidential election.

An attempt to protect the power of the voters

In almost all states, the candidate who receives the most votes for the presidency receives all of that state's electoral votes. There are minor exceptions in Nebraska and Maine – but the laws of these states also stipulate that the majority of electoral votes go to the candidate who wins the statewide majority vote.

This was also the case in the late 1860s, when the 14th Amendment was written and ratified—although the franchise was limited to men until 1920, and states often denied or restricted the right to vote for some citizens, particularly ethnic minorities. After the Civil War, Congress attempted to remove barriers to voting for black men, particularly in the South.

When Congress debated the 14th Amendment in 1866, its authors drafted Section 2 with the goal of forcing reluctant white Southerners to grant blacks the right to vote.

Section 2 of the 14th Amendment states that “if the right to vote at any election to choose electors for President and Vice President of the United States… shall be denied… or in any manner abridged… the basis of representation” for that state in the United States House of Representatives “shall be abridged in proportion to the abridgement.”

So if a state were to disenfranchise one of its citizens, it would immediately lose the same percentage of seats in the House of Representatives equal to the percentage of people disenfranchised.

Just a few weeks after ratification, this provision was questioned for the first time.

Florida's Republican-dominated Reconstruction legislature decided to choose presidential electors without a popular vote. The Democrats – then the party that supported black disenfranchisement – were furious. Many Southern newspaper journalists, still angry about the ratification of the 14th Amendment, saw this as an opportunity to turn the amendment against its Republican authors.

“The clear conclusion is that if in any State the choice of Presidential Electors were taken out of the hands of the people and placed in the hands of the Legislature, the entire citizenry of the State … would be excluded,” wrote the Charleston Daily News on August 10, 1868.

This was not a rare or local view: nine days later, the Anderson Intelligencer, a South Carolina newspaper, published a short article attributed to the New York Herald that stated similarly:

“If all voters in a state are denied the right to vote in the presidential election, then the basis of representation in that state must be reduced by the number of all voters, that is, there no longer exists any basis of representation at all.”

These opinion pieces have no legal authority, but they reflect a common—if controversial—understanding of the provisions of the 14th Amendment at the time of its passage. No one sued, so no court had a chance to weigh in. And the Republican-dominated Congress had no qualms about accepting electoral votes—even without a popular vote—for the Republican presidential candidate.

The right to have your vote counted

After the 2020 election, Congress took steps to clarify that voters must be the ones who choose electors. A law passed in 2022 revised federal law on electoral college selection, specifying that state legislatures must determine the method for selecting their state's electors before Election Day and cannot change it after votes are cast.

This clarification is consistent with, and even strengthens, the provisions of Section 2 of the 14th Amendment.

As our analysis shows, a direct election of electors by a state legislature would disenfranchise all voters in the state. After all, the right to vote is the right to have one's vote counted, not the right to have one's candidate win.

Thus, even if the legislature were to select a slate of electors that would have received significant support in the popular election, the legislature's decision would limit the rights of every voter in the state. Disenfranchisement depends on whether the people or the legislature selects the electors, not on which electors are selected.

If all of a state's voters are disenfranchised, Section 2 provides that that state's representation in the House of Representatives shall immediately and automatically be reduced to zero. Elsewhere in the Constitution, it is specified that each state's representation in the Electoral College shall be equal to the sum of the state's delegations to the House of Representatives and the Senate.

If a state does not have a representative in the House of Representatives, it would only have two electors, making its influence on the presidential election negligible and largely irrelevant.

A single exception

Apart from Florida in 1868, there has only been one case in which a state legislature appointed its presidential electors without a popular vote: in 1876.

Voter fraud, political violence, and voter intimidation undermined the integrity of the 1876 presidential election. The constitution of Colorado, which had just been admitted as a state, provided that the legislature would select the state's presidential electors in 1876 without a popular vote. Overshadowed by an exceptionally bitter election, the legislature's selection of Colorado's presidential electors attracted relatively little attention or debate.

Overall, one can conclude that Southern newspapers in 1868 read the text of Section 2 correctly. The authors may have been cynical opportunists seeking to defend an untenable racist hierarchy, but their interpretation of the text is reasonable.

The meaning of Section 2 is clear and provides for severe penalties if a state does not allow its citizens to vote for presidential electors. The 14th Amendment continues to protect American democracy more than 150 years after its ratification.