Power for the People: Recognizing the Constitutional Right to Vote for President
Document Type
Article
Publication Title
Cardozo Law Review
Journal Abbreviation
Cardozo L. Rev.
Abstract
This article is an argument for a federal constitutional right to vote for president at a time when voting rights are under grave threat. No court has yet held that citizens have an independent federal constitutional right to vote for president. In fact, the Supreme Court has twice held that under the Constitution, states have such “plenary power” to choose presidential electors that they can exclude citizens from voting for president.
The article explains why the Supreme Court cases rejecting the citizens’ right to vote were wrong. My first argument is textualism. The plain language in the five constitutional right to vote amendments demonstrates that there is a right to vote for president. From there, the article shows how the Court’s plenary power cases rest on irredeemably flawed Jim Crow era precedent abrogated by both constitutional amendment and the historical evolution of the right to vote. I also make two consequentialist arguments. First, plenary state power to choose presidents risks racist, sexist, and ageist results that would be unconstitutionally discriminatory, and second, that the usurpation of the citizens’ right to vote for president would be catastrophic for democracy and the country.
The article is novel in several respects. The multifaceted case for the right to vote for president is new. I rely on sources ranging from conservative textualists to critical race scholars, and ranging in time from the Reconstruction to the present. The article places particular emphasis on Black lawyers, scholars, activists, and judges in considering the role race has played in the development of the right to vote in the Constitution and wrongful destruction of that right by the Jim Crow era Court. The depth of the analysis of the racism and sexism of the “plenary state power” theory--past, present, and future—is new. The article also breaks new scholarly ground by linking the “plenary power” theory to present day anti-democratic attempts to subvert elections, including the failed Trump coup. The article provides a framework for making the right to vote the new normative standard for evaluating presidential election disputes.
First Page
1789
Last Page
1860
Publication Date
Fall 2024
Recommended Citation
Charlie Martel,
Power for the People: Recognizing the Constitutional Right to Vote for President,
45
Cardozo L. Rev.
1789
(2024).
Available at:
https://lawcommons.lclark.edu/faculty_articles/247