Publication Date
6-1-2025
Abstract
Recent scholarship argues that Section 2 of the Fourteenth Amendment protects the people’s right to elect presidential electors. This Article offers fresh perspectives both on Section 2 scholarship and on the underlying history of the Electors Clause. It begins with a review of modern interpretations of the Fourteenth Amendment. It then summarizes the author's recent research into the text and structure of the Electors Clause and its ratification. It also offers new perspectives on consequential debates over the constitutionality of legislative election that began in 1800 and ended in 1826. When Section 2 was drafted in June 1866, the popular election of presidential electors was universal, challenged only by South Carolina's formerly renegade but recently repudiated and abandoned practice. Section 2 created or reaffirmed the rights of the people and protected against backsliding. Our subsequent history—including a second ratification of the words of the Electors Clause in 1961—confirms the people’s right to elect the President.
First Page
967
Recommended Citation
Mark Bohnhorst, Revisiting Section 2 and the Electors Clause: On the Right of the People to Choose Presidential Electors, 102 Denv. L. Rev. 967 (Fall 2025).