UMRA’s first forum of our 2024–25 program year was presented by Mark Bohnhorst. His talk was titled “The 2024 Presidential Election: A ticking Time Bomb?” 

Bohnhorst is a member of UMRA and retired from the University of Minnesota in 2016 as senior associate general counsel. In his retirement, he has published articles in two law reviews and in a peer-reviewed journal about the history of presidential elections and the meaning of Article II of the U.S. Constitution. (See attached slides.)

He took us on a deep dive into the history of the Electoral College and the selection of electors for the Electoral College. This is important because the current race for president is very close and could be decided, in part, by how challenges to the election are resolved. These challenges will likely include assertions (as in 2020) that state legislators—not the people—get to decide who the electors are. 

Today, in all states and the District of Columbia, each candidate’s political party appoints a group of people, a slate, of potential electors before the general election. Most states have a “winner-take-all” system and, after the election, the winning candidate’s electors become the state’s electors. 

In the early years of our republic, Bohnhorst explained, when everyone knew George Washington would be elected and the method of election did not really matter, it was common for electors to be designated by state legislatures. The framers of the Constitution had actually rejected this idea; furthermore, during ratification both sides agreed that electors were to be elected by the people. Thus, there was a disconnect between the intention of the framers and the practice that emerged. 

A controversy arose

Once Washington was gone, a controversy about the selection method and its constitutionality arose. This led to a debate that stretched from 1800 to 1826 and, in practice, was eventually resolved by the election of electors by the people of each state. This has been the practice for the last 200 years—with the exception of South Carolina, which did not change its method until after the Civil War. 

Bohnhorst also noted that the Electoral College and the rights of the newly freed slaves were the subject of political controversy and Ku Klux Klan-inspired violence during the Civil War era. In 1866, Congress made last-minute changes to Section 2 of the 14th Amendment to ensure not only that Black persons had equal rights to vote but also that the people, and not state legislatures, would choose presidential electors. 

The Klan violence that followed ratification of the 14th Amendment prompted fears that Ulysses S. Grant might lose the 1868 election, and led to precipitous action by legislatures in Florida and Alabama to have legislatures choose electors. This was widely condemned. The idea was abandoned within a few weeks (and was not suggested again for 132 years, in Bush v. Gore). 

In 1876, confronted with continuing Klan violence, some states resorted to allowing local election officials to invalidate results that officials believed were tainted by fraud and intimidation. An Electoral Commission that was set up to resolve the very close 1876 election accepted this practice, which ended up deciding the 1876 election.

This tactic of empowering local officials to evaluate election returns and discard supposedly tainted returns is being suggested today in Georgia. Bohnhorst is worried that manipulations such as this—or actual violence and chaos that could lead to calls to let the state legislatures elect—could ultimately affect the 2024 election. 

As suggested in the September 12, 2024, issue of The Economist, the hope is that good faith actions by key actors will prevail. Bohnhorst hopes Georgia’s state courts will affirm that local officials are to canvass and count the votes within set deadlines and have no power not to count. 

A 2022 change in federal law to allow almost immediate resolution of disputes about electoral votes in federal court is another hopeful development—assuming, as one must, that the federal courts act in good faith. 

Bohnhorst candidly shared these and other concerns from his “anxiety closet”—a new phrase for the lexicon of elections. We will have to wait and see what actually happens. 

Our thanks to Mark Bohnhorst for an enlightening presentation.  

—Bill Donohue, UMRA Program Committee