A 28TH CONSTITUTIONAL AMENDMENT THAT WE CAN AGREE ON?
By: Jason Michael Katz
Tags: Voting Rights, Trump, Popular Vote, Amendment, Constitutional Law

A 28TH CONSTITUTIONAL AMENDMENT THAT WE CAN AGREE ON?

It’s time to amend Article II of the Constitution to require states to choose their presidential electors by popular vote.

Despite Thomas Jefferson’s admonishment that the Constitution should be subject to “periodical repairs, from generation to generation,” there has been a modern day reluctance to amend it. The Constitution was last amended in 1992 and even that amendment (the 27th) was of little significance (it related to Congressional pay raises). The political right tends to view the Constitution as a bible of sorts, with its text representing holy scripture carved into stone by the founding fathers. The reality is, Constitutional amendments have tended to be harmful to the right — especially to the extent that they have expanded governmental power to protect and expand civil rights and widened the net of people who can vote.

Despite the reluctance of the right to alter the Constitution as written, there is an amendment that should have a shot of ratification — one that would constitutionally mandate that state presidential electors be directly chosen by state popular vote. Our most recent presidential election demonstrates the necessity of this change.

Since 1880, the laws of every state have provided that electoral votes for president be determined by a popular vote (women, however, were not granted that right until 1920). For 140 years, ballots have been cast and tallied, and the presidential candidate that received the most votes would be awarded the electoral votes from that state. This all seemed so clear and simple — at least until Donald Trump came along and challenged that premise in this year’s election.

This year, facing a loss of the popular vote in swing states he needed to win, Trump tried to circumvent the voting results. He began by concocting a claim that vote counts in swing states he lost were fraudulent, rigged, illegal, fake, etc. When state election officials stuck with their vote counts, Trump turned to Republican controlled state legislatures in those states. He implemented a long shot strategy of using his political might to pressure Republican state legislators to disregard vote tallies and, instead, declare him the winner. Trump claimed that legislatures had the constitutional power to do this, pointing to Article II, Section 1 of the Constitution which states that each state shall select their electoral votes for president “in such manner as the Legislature thereof may direct.”

While commonly accepted legal thinking does not support Trump’s reading of Article II, the reference to “Legislature” did at least provide a desperate and ethically unconstrained president like Trump the thinnest sliver of rationale to sell to state legislative loyalists and re-election hungry followers to disregard tabulated vote results. This has been Trump’s version of a legislative coup — one that some Republican officials have even hinted they would go along with.

It has been an ugly last stand. Trump’s lawyers have filed scores of embarrassing and specious lawsuits challenging state election results. Trump himself has had inappropriate meetings and discussions with Republican legislators from swing states, while indirectly pressuring them through public declarations of election fraud to his tens of millions of supporters — supporters that hold tremendous political sway over the state legislators. It has created chaos and resulted in Republican officials delaying recognition of Biden’s win. This delayed and uncertain transfer of power has been injurious to American interests both home and abroad.

Luckily, Trump’s Hail Mary strategy appears to have failed. Courts have been dismissive of his disjointed and inept legal efforts. And Biden won the vote convincingly enough that Republican swing state legislators so far appear unwilling to stick their necks out to overturn the popular vote which would result in them having to face the inevitable wrath of an extraordinarily large group of disenfranchised voters (as well as the possible specter of criminal liability under state and federal election and bribery laws). Of course, one would hope that some legislators have simply decided to do the right thing and honor the popular vote.

But Trump’s actions have once again highlighted the fragility of American democracy. Given the “legislature” language of Article II, legislative control of key gerrymandered swing states by increasingly extremist Republicans representing diminishing conservative minorities, and a U.S. Supreme Court now squarely controlled by far right jurists, it would not surprise if future presidential candidates finding themselves on the losing end of a vote employ this strategy — that is, making baseless accusations of election fraud and then claiming that state legislatures can override allegedly rigged popular vote counts.

There are at least two serious and fundamental problems caused by the availability of this textually supported tactic going forward. First, it would assist a future Trump like presidential candidate to more easily sow doubt in his or her supporters’ minds as to the legitimacy of an election. As absurd as Trump’s efforts have been, they were buttressed by the existence of the “legislature” language in Article II. At a minimum, he was able to threaten pitting Republican legislatures loyal to him (and his followers) against what he labeled as corrupt Democratic governors and/or leftist courts — which public threats have delegitimized election results in the eyes of his supporters and destabilized the transfer of executive power.

Second, despite state laws that clearly mandate that presidential electors be chosen by the popular vote, there remains at least the potential for a far right Supreme Court to empower state legislatures to undercut the popular vote in the future. Indeed, a majority of the current Supreme Court justices may already subscribe to this “state legislatures have final say” philosophy in some form. In response to this year’s lawsuits challenging Pennsylvania’s election results, four Supreme Court justices acknowledged the potential relevancy of Article II’s “state legislature” language in adjudicating these disputes — albeit in dissent or dicta. While newly seated justice Amy Coney Barrett’s view of this remains unknown, given that she is a constitutional originalist, it would not surprise if she ultimately agreed with those four justices. This would result in a Supreme Court majority possibly willing to side with state legislatures in future disputes over election results.

There is a clear solution to both of these problems — to amend Article II to take “state legislators” out of the equation and to clarify that state presidential electors must be determined by popular vote — in other words, to “constitutionalize” current state voting laws.

Of course, in light of Republicans’ reluctance to amend the Constitution, the question must be asked, is such an amendment possible? Given the Constitution’s requirement that three fourths of state legislatures approve of a constitutional amendment, at least 17 out of 29 state legislatures controlled by Republicans would have to vote for ratification (only 21 state legislatures are essentially controlled by Democrats). Moreover, some conservatives will argue that it gives too much power to state supreme courts to decide election issues — courts that have increasingly been moving to the left. There is no guarantee that this amendment would be ratified.

But passage of such an amendment is at least plausible for three reasons. First, such a change would not be without historical precedent. Similar to how the Constitution currently provides that state presidential electors are to be chosen “in such manner as the Legislature thereof may direct,” the Constitution originally provided that “state legislatures” chose federal senators. The 17th Amendment changed that, removing state legislatures from that process and instead, requiring that senators be chosen by popular vote. A 28th Amendment would essentially be another 17th Amendment, but for presidential instead of senatorial elections.

Second, such an amendment would not diminish the electoral power of smaller, more conservative states. This amendment would not create what Republicans fear — a national popular vote for president. Small states would continue to delegate their presidential electors on a statewide basis rather than having their small popular vote totals rendered inconsequential by larger populated, typically more liberal states in a nationwide vote. In other words, this amendment would not reduce Republican political power.

Third, once this election is finally over and Trump has exited the White House, many Republicans will be more willing to acknowledge that election uncertainty is harmful to both American foreign policy and financial interests. Making presidential elections more smooth and certain is simply good political business.

Regardless of whether passing a 28th Amendment will involve a political fight, given the upheaval, uncertainty, and attempted electoral delegitimization in the current presidential election, it is a viable constitutional change that should be pursued and fought for.