ELECTION INTEGRITYHow the 14th Amendment Prevents State Legislatures from Subverting Popular Presidential Elections
In November 2020, as it became clear that Trump had lost the popular vote and would lose the Electoral College, Trump and his supporters mounted a pressure campaign to convince legislatures in several states whose citizens voted for Joe Biden to appoint electors who would support Trump’s reelection in the Electoral College votes. Trump’s efforts to overturn the results of the 2020 presidential election not only failed, but some of them also rested on a misreading of the U.S. Constitution. There was a safeguard already in place – and it remains today, defending against this approach being used to subvert the 2024 presidential election.
Donald Trump’s efforts to overturn the results of the 2020 presidential election not only failed, but some of them also rested on a misreading of the U.S. Constitution, as our new analysis argues. The relevant constitutional provision dates back to just after the Civil War, and contemporaries recognized it as a key protection of American democracy.
In November 2020, as it became clear that Trump had lost the popular vote and would lose the Electoral College, Trump and his supporters mounted a pressure campaign to convince legislatures in several states whose citizens voted for Joe Biden to appoint electors who would support Trump’s reelection in the Electoral College votes.
Trump and his allies contacted Republican lawmakers in Michigan, Georgia and Pennsylvania to induce the state legislatures to overturn the results of the popular election. Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, emailed GOP legislators in Arizona, encouraging them to “ensure that a clean slate of Electors is chosen.”
These efforts were relying on a provision of the Constitution, in Article II, Section 1, that states, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Trump and his supporters wanted state lawmakers to discard their citizens’ votes and simply appoint electors who would back Trump’s reelection bid.
As part of their efforts, Trump and his supporters claimed that the Constitution allowed state legislatures to directly choose a slate of electors without a popular vote.
But they were wrong. There was a safeguard already in place – and it remains today, defending against this approach being used to subvert the 2024 presidential election.
An Effort to Protect Voters’ Power
In almost every state, the candidate who gets the most popular votes for the presidency receives all of that state’s electoral votes. Nebraska and Maine have slight exceptions – but those states’ laws still deliver the majority of their electoral votes to the person who wins the popular statewide vote.
In the late 1860s, when the 14th Amendment was written and ratified, the same was true – though the right to vote was limited to men until 1920, and states have often denied or abridged the voting rights of some citizens, particularly racial minorities. After the Civil War, Congress sought to remove barriers to Black men’s voting, especially in the South.
