Donald Trump’s efforts to overturn the results of the 2020 presidential election not only failed, but some of them also relied on a misreading of the U.S. Constitution, as our new analysis showsThe relevant constitutional provision dates back to just after the Civil War, and contemporaries recognized it as an essential 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 held a rally to protest Trump’s decision not to vote for the new president. pressure campaign to convince the legislatures of several states whose citizens voted for Joe Biden to appoint electors who would support Trump’s re-election in the Electoral College votes.
Trump and his allies have contacted Republican lawmakers in Michigan, Georgia and Pennsylvania to urge them to vote. state legislatures to overturn the results of the popular election. Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas, I sent an email to Arizona Republican legislatorsencouraging them to “ensure that a clean list of voters is chosen.”
These efforts were based on a provision of the Constitution, in Article II, Section 1, which states: “Each State shall appoint, in such manner as the Legislature may directa certain number of electors.” Trump and his supporters wanted state legislators to reject the votes of their citizens and simply appoint electors who would support Trump’s re-election bid.
As part of their efforts, Trump and his supporters have claimed that The Constitution authorized state legislatures has directly choose a list of voters without popular vote.
But they were wrong. There was already a safeguard in place – and it still is today – that prevents this approach from being used to subvert the 2024 presidential election.
An effort to protect voter power

The Anderson Intelligencer via newspapers.com
In almost every state, the candidate who obtains the most popular votes because the presidency receives all the electoral votes from that state. Nebraska and Maine have slight exceptions. – but the laws of those states still award the majority of electoral votes to the person who wins the statewide popular vote.
By the late 1860s, when the 14th Amendment was drafted and ratified, the same was true – although the right to vote was limited to men until 1920and states often denied or restricted the right to vote of some citizens, particularly racial minorities. After the Civil War, Congress sought to remove barriers to voting for black men, particularly in the South.
In 1866, when Congress debated the 14th Amendment, its framers drafted Section 2 in a effort to force reluctant white Southerners to allow black men to vote.
Article 2 of the 14th Amendment states that “when the right to vote in any election that the choice of electors for President and Vice President of the United States… be withheld… or in any way abridged… the basis of representation” for this State in the United States House of Representatives “shall be reduced” in proportion to the abridgement.
So if a state took away the right to vote of one of its citizens, it would do so immediately. lose the same percentage of seats in the House as a percentage of people whose voting rights have been removed.
Just weeks after its ratification, this provision faced its first challenge.
Florida Reconstruction Legislature Dominated by Republicans decided to choose presidential electors without popular electionDemocrats, who at the time supported the disenfranchisement of black men, were angry. Many Southern journalists, still angry about the ratification of the 14th Amendment, saw this as an opportunity to turn the amendment against its Republican authors.
“The obvious conclusion is that if in a state “If the election of presidential electors is taken out of the hands of the people and placed in the hands of the legislature, the whole citizenry of the State…will 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, also stating:
“When the right to vote for presidential electors is denied to all electors in a statethen the basis of representation in such a state must be reduced by the number of all the voters, that is, there will be no basis of representation at all.
These opinion pieces have no legal authority, but they reflect a common – albeit contested – opinion. understanding the provisions of the 14th Amendment When it was passed, no one filed a legal challenge, so no court had a chance to rule. And the Republican-dominated Congress had no qualms about accepting the electoral votes—even without a popular vote—for the Republican presidential nominee.
The right to have your vote counted
Following the 2020 election, Congress took steps to clarify that voters should choose presidential electors. Legislation passed in 2022 revised the federal law governing the selection of electors to specify that state legislatures must determine their state’s method for choosing electors before Election Day and it cannot be changed once the votes have been cast.
This clarification is consistent with, and even strengthens, the provisions of Section 2 of the 14th Amendment.
As our analysis shows, if a state legislature were to directly choose electors, it would disenfranchise every voter in the state. The right to vote, after all, is the right to have one’s vote counted, not the right to have one’s preferred candidate win.
Thus, even if the legislature chose a slate of electors that received substantial support in the popular election, the fact that the legislature made that choice would diminish the rights of every voter in the state. The disenfranchisement depends on whether the people or the legislature chose the electors, not on the nature of the electors selected.
If all voters in a state are disenfranchised, Section 2 requires that the state’s representation in the House of Representatives will be immediately and automatically reduced to zeroThe Constitution further specifies that the representation of each State in the Electoral College is the sum of the state House and Senate delegations.
So, if a state has no representatives in the House, it will only have two electors, making its influence on the presidential election tiny and largely inconsequential.
Only one exception
To date, besides Florida in 1868, the only other example of a state legislature choosing presidential electors without popular election arrived in 1876.

Universal Historical Archives/Universal Images Group via Getty Images
Electoral fraud, political violence and voter intimidation undermined the integrity of the 1876 presidential electionThe constitution of newly admitted Colorado as a state provided that the legislature choosing state presidential electors without a popular vote in 1876Overshadowed by an exceptionally acrimonious election, the legislature’s selection of Colorado’s presidential electors has generated relatively little attention or debate.
The general conclusion is that Southern newspapers in 1868 read the text of Section 2 correctly. The authors may have been cynical opportunists working to defend an indefensible racist hierarchy, but their interpretation of the text is sound.
The meaning of Section 2 is clear, and it imposes severe penalties if a state fails to allow its citizens to vote for electors. The 14th Amendment continues to protect American democracy more than 150 years after its ratification.