The Constitution Says You Have the Right to Vote For President. The Supreme Court Should Say So

Editor’s Note: This essay is based on an article that will be published in August in the Cardozo Law Review.

There is one prediction about the 2024 presidential election that is virtually certain to be right: It will end up, in some way, before the U.S. Supreme Court. This has happened twice this century already. Famously, the Supreme Court decided the 2000 election in Bush v. Gore, and in 2020, Trump’s team launched a blizzard of meritless litigation in an effort to overturn the election results. To its credit, the Court rejected Trump’s arguments. But Trump’s tactics herald an era in which every election is likely to end up in the Court. 

If this happens in 2024, the Court will have a historic opportunity. It should rule that under the Constitution, citizens have a right to vote for president. 

The argument for a constitutional right to vote for president is simple. There are five amendments in the Constitution protecting the right to vote in some form or another: the Fourteenth, Fifteenth, Nineteenth, Twenty Fourth, and Twenty-Sixth. This makes voting the right most often protected by the Constitution, and the only constitutional right that Congress and the states have strengthened with repeated amendments. 

Two amendments expressly protect the right to vote for president: The Fourteenth Amendment refers to “the right to vote at any election for the choice of electors for President,” and the Twenty-Fourth Amendment concerns “the right of citizens of the United States to vote in any primary or other election for President.” The Fourteenth Amendment even penalizes states that deny or abridge the right to vote by reducing their representation in Congress (and the Electoral College). Congress has never enforced that penalty— constitutional right to vote cases have been brought up in courts, usually under the Equal Protection clause in Section 1. But the Fourteenth Amendment penalty  shows that its Framers meant what they said when they put the words “right to vote” in the Constitution.

Each of these amendments extended the right to vote to more Americans. The Fourteenth Amendment, ratified in 1868, was the first constitutional statement that there is a right to vote—including for presidential electors—but limited that right to men 21 and older. Two years after that, the Fifteenth Amendment protected the right to vote for Black male voters—a right later bolstered by the Twenty-Fourth Amendment, which banned racist poll taxes. In 1920, the Nineteenth Amendment expanded the right to vote to women; in 1971, the Twenty-Sixth Amendment lowered the voting age to 18. Together, these amendments have created a universal right to vote that states cannot deny or abridge.

But despite the Constitution’s explicit protections of the right to vote, the current law is that citizens do not have a right to vote for president. And that law is the Supreme Court’s fault—not the current Court, but the Court that decided Bush v. Gore in 2000, effectively deciding that year’s election and awarding the White House to the Republican nominee, George W. Bush. 

In an unsigned 5-4 opinion, the Bush Court’s five conservative justices decided that “the state legislature’s power to select the manner for appointing electors is plenary”—in other words, absolute—and that citizens have “no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election.” And the Bush Court was not done assaulting voting rights: It added that states can actually decide to take the vote for president away from citizens, and instead use their so-called “plenary power” to pick presidential electors any way they want to. The Bush Court based this startlingly anti-democracy reasoning on the Constitution’s Electoral College provision, enacted as part of the original Constitution in 1789, which authorizes states to appoint electors “in such Manner as the Legislature thereof may direct.” 

The Bush Court was wrong. It did not mention the right to vote in five amendments enacted after 1789, which necessarily amended the original Constitution by requiring that citizens decide who will be president by voting for electors to the Electoral College.

History says the same thing as the Constitution: The people choose the president. The 1789 model of state-appointed electors picking presidents died out by the 1830s. By then, all but one state used citizen elections for president, and by the 1870s all states had moved to citizen votes. 

Supreme Court justices as different as Samuel Alito and Ruth Bader Ginsburg have held that “history and tradition” inform what rights are constitutionally protected. Few things are more deeply part of American history and tradition than citizens voting in presidential elections. If the Court means what it said about history and tradition, there has to be a constitutional right to vote for president.

So how did the Bush Court get it so wrong? The road to Bush was paved by three Supreme Court decisions in the late 1800s, a shameful era when the Court destroyed newly established constitutional voting rights and enabled decades of Jim Crow racism. In the first of these cases, the 1875 Minor v. Happersett decision, the Court held that states could refuse to allow women to vote. The Court reasoned that women had no constitutional right to vote because no one had a constitutional right to vote. 

The second case was the 1875 U.S. v. Cruikshank decision. Cruikshank was about the infamous Colfax Massacre, during which white supremacist murderers killed hundreds of Black citizens who were protecting pro-civil rights elected officials in Louisiana. The Cruikshank Court dismissed the charges against the murderers, in part because it concluded that the Black citizens who were murdered did not have a constitutional right to vote.  

Minor and Cruikshank are among the worst decisions in the history of the Court, but in 1892, the Supreme Court relied on those cases to go even further. In McPherson v. Blacker, the Court first announced its theory of state plenary power to choose presidential electors, and held that citizens had no right to vote for president. Making this even worse, the justices who came up with the “plenary power” theory in McPherson were almost the exact same justices who decided another historically wrong decision, the 1896 Plessy v. Ferguson case in which the Court upheld Jim Crow segregation. While McPherson itself did not deal with issues of racial or gender rights, it is the product of a Court tainted by racism. 

More than a century later, the Bush Court relied entirely on the McPherson interpretation of the Electoral College clause in reaching its conclusion. What this means is that the Bush “plenary power” theory comes from racist, sexist, Jim Crow-era cases from the late 1800s. These cases are irredeemably wrong, and have no place dictating voting rights law in 2024. Bush also ignored a series of previous Court decisions correctly recognizing that voting is a fundamental right that serves as the foundation for all other rights. This sound reasoning should apply to presidential elections too. 

The plenary power theory was born from racism and sexism; if the Supreme Court affirms the theory, it would revive those evils today. Displacing citizen voting rights with state power to pick presidents takes power away from a diverse electorate and gives it to legislatures in which women, people of color, and young adults are dramatically underrepresented. While the plenary power theory is steeped in prejudice, in the end it assaults all citizens’ voting rights. And because the right to vote is the foundation for all rights, when the right to vote is not safe, neither is any other right.  

Outside of the Court, some conclude that the Constitution’s right to vote amendments are more limited. According to these arguments, the right to vote does not extend to a right to vote for president because of the Electoral College provisions. Others contend that the constitutional voting rights are limited to what they call “negative” rights—rights that only prohibit denial of voting for discriminatory reasons.

But these arguments don’t make sense. The voting amendments were not exclusively negative. Each created an affirmative right to vote for tens of millions of people—first for male voters, and later for Black citizens, women, and younger adults.There is no such thing as rights that are only negative. Rights are both affirmative and negative. A right is affirmative because the person with the right can do the thing they have the right to do. A right is negative because the government cannot stop the person with the right from doing the thing they have the right to do. 

In fact, many constitutional rights are framed in so-called negative language that prevents the government from taking or interfering with the right. For example, the First Amendment rights to religious freedom, speech and assembly—clearly affirmative rights—are expressed in negative language: “Congress shall make no law…prohibiting” or “abridging” them. The Second Amendment, too, is expressed in negative language: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Some self-styled textualists ignore that the words before the second comma mean that right can be regulated. Be that as it may, the Second Amendment is an affirmative right. So is voting. 

It does not make sense to say that voting is a fundamental right—except that there is no right to vote for president, the most important election of all. It does not make sense to argue that states cannot deny the vote to certain citizens for discriminatory reasons—but that states can deny the vote to all citizens for no reason. But “plenary power” advocates are arguing these exact things.

One more proof that the plenary power theory is crazily wrong is that the Trump coup planners thought they could use the theory to get away with using fake electors to overturn the results of the 2020 election. Their scheme went further than even the radical Bush decision allows. The Bush ruling means that once a state decides to pick electors through a popular vote, the state has to honor the vote. Bush says states can kill democratic elections for president in future elections; the Trump legal team tried to kill a democratic vote that had just happened. 

Either way, all this shows how wildly anti-democratic the “plenary power” theory is. A state legislature should not have the power to disallow citizens from voting for president in the future (which Bush permits) or disregard votes citizens cast for president in a current election (which the Trump coupsters tried).    

The danger of the plenary power theory is not just the lawlessness and violence of the Trump coup, or the chance that a legislature would usurp the citizens’ right to vote for president. If state power over presidential elections is “plenary,” states can get away with less dramatic but equally authoritarian steps to override the will of the public. 

Alarmingly, many state legislatures are enacting laws and policies to do just that. State courts are joining in. Earlier this year, for example, the Kansas Supreme Court decided that there is no fundamental right to vote under the state constitution, clearing the way for lawmakers to make it more difficult for citizens to participate in democracy. The Framers were wise to pass amendments prohibiting states from denying or abridging the right to vote, because they knew that some states cannot be trusted to protect it. 

The common-sense and constitutional solutions to this problem are the same: Recognize that citizens have a right to vote for president. The 2024 election will give our Supreme Court a chance to get this right. Doing so would overrule the stain of racist, sexist Jim Crow-era cases that still wrongly rule our elections. And it would honor the reality that 200 years of citizens voting for president is enough “history and tradition” to show that there is a right to vote. 

There is abundant reason to doubt that this particular Court will expand the right to vote. But there is one great reason for the Court to find that citizens have the right to vote for president: the Constitution says they do. Conservative justices say they’re textualists. Here’s their chance to prove it. 

Abraham Lincoln said “Elections belong to the people. It’s their decision.” A Supreme Court sorely in need of legitimacy would be wise to agree.