Is Democracy Doomed by the Constitution Itself?
by John Lawrence
According to the Constitution, state legislatures have complete control over their state's electors so, even if the popular vote is for a Democrat, a Republican controlled state legislature can choose electors dedicated to the Republican candidate for President. The electoral college was established by Article II, Section 1, Clause 2 of the U.S. Constitution and modified by the 12th and 23rd Amendments. Article II, Section 1, Clause 2 of the U.S. Constitution states:
"Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector."
The 12th amendment is irrelevant to our discussion as it has mainly to do with how electors should deliberate and the number of which are chosen by each state. The 23rd amendment gives citizens living in DC the right to vote. The Constitution makes clear that state legislatures have complete control over the selection of electors, and, therefore, that state's control of its votes for President regardless of the popular vote in that state. In fact the following is true:
"Currently, all states select electors through a popular vote (although how that vote works can differ), but that was not always the case throughout American history. In many states, the state legislature selected electors, a practice which was common until the mid-1800s."
Many "battleground states", those where the popular vote is close, have Republican controlled legislatures. When the same party holds both legislative chambers and the governorship, that party has state control. Republicans have state control in the battleground states of Arizona, Georgia, Florida and Ohio as well as 19 other states mostly in the south and midwest. State legislatures that are Democrat controlled are mostly on the west coast and northeast. In the next Presidential election red states that have state control of their legislatures and governorships could change the rules about how they choose electors and decide that they will choose Republican electors regardless of the popular vote. Of course they would be sued and the suit would wind up in the Supreme Court which is majority controlled by Republicans and conservatuves. One of the tenets of conservatism is a strict interpretation of the Constitution. They are called "strict constructionists." There is absolutely no doubt that a strict interpretation of the Constitution gives state legislatures complete control over the selection of electors. If rules need to be changed in those states to allow for the selection of electors not to be made by popular vote, that can easily be accomplished in states in which both the Houses of the legislature and the governorship are in Republican hands such as in the battleground state mentioned above.
So while the US Congress has been concerned over the years with voting rights such as the 15th and 19th amendments to the Constitution which gave voting rights to African Americans and women, respectively, and the Voting Rights act of 1965 which prohibits racial discrimination in voting, the real test for nondiscriminatory election of the President of the U.S. will come up in the 2024 election in which many red states will avail themselves of their rights as states to select electors. In the final analysis expanding voting rights legislation such as the John Lewis Voting Rights Act and the Freedom to Vote Act are irrelevant to the outcome of the election. The John Lewis Voting Rights Advancement Act would make illegal voting rules that discriminate on the basis of race, language, or ethnicity and empower voters’ to challenge discriminatory laws. The Freedom to Vote Act (S. 2747) is currently in the Senate and would solidify comprehensive voter protections, including a minimum of 15 days for early voting, mail-in ballots, and making Election Day a national holiday. It would require eliminating the filibuster to get these laws passed in the Senate.
If states pursue what is their right according to the Constitution to change electoral law to allow them to choose electors not in accordance with popular vote, it will precipitate a Constitutional crisis in 2024. If Trump runs and is elected due to these changes at the state level, the Supreme Court will uphold the election results and Trump will be elected despite the popular vote. This is the scenario that Trump clumsily tried but failed to succeed with in 2020. Next time it could succeed and be perfectly legal. All this goes to show that the U.S. Constitution is fundamentally flawed. Minimal changes that would bring it into the modern world would be elimination of the electoral college so that Presidents are elected by popular vote, the elimination of the filibuster so that the Senate operated as a democratic institution and elimination of the Second Amendment so that every nut case doesn't have the right to own firearms.