Protecting the popular vote
Are you disturbed by evidence coming forth from the House investigation into the January 6 attack on the U.S. Capitol that Donald Trump's team sought to use state legislatures to overturn the popular election of Joe Biden in 2020? Are you also concerned by reports that this strategy is being actively considered for 2024?
So is UMRA member Mark Bohnhorst, who, together with Aviam Soifer, a constitutional law scholar and retired law school dean, has put forward a novel suggestion for how Congress could take action to protect the people’s right to vote for president.
In a commentary published in The Hill, a Washington-based daily newspaper and political news website, Bohnhorst and co-author Soifer point out that Section 2 of the Fourteenth Amendment—long ignored and never enforced—enshrines the principle of the people’s right to vote for president, and it requires a state's representation in the House (and thus in the Electoral College) to be reduced “proportionately” if the state violates that principle. With state legislative usurpation of the right, the proportional reduction could be 100 percent.
According to Bohnhorst and Soifer, the House could adopt a resolution that it will not seat members from such a state, and Congress could pass a joint resolution that it will not count the state's electoral votes.
Look to the 14th Amendment
Their commentary, appearing in The Hill under the headline “Look to 14th Amendment to check GOP efforts to subvert popular vote," is adapted from a forthcoming law review article, co-authored by Bohnhorst and Soifer (with others), that will be published in the Lewis & Clark Law Review in June. The article is accessible online now through the open-access research platform SSRN.
Bohnhorst retired from the Office of the General Counsel, where he provided legal advice and support to the U’s scientific research mission.
“In the course of representing the University of Minnesota for 24 years, I developed tremendous respect and admiration for dedicated researchers, scholars, and academic leaders," Bohnhorst said. “It is more than great to have a co-author who has been a law school dean for 22 years and who has deep expertise in the specific field (post-civil war legal history) that we are writing about."
Bohnhorst thinks Congress should act now to put an end to the threat of legislative usurpation of the people’s right to vote for president, and that principled members of all parties would agree. He suggests you consider contacting your representatives in Congress to share your views with them. You are also welcome to email [email protected] to contact him.
—Bill Donohue, UMRA past president 2019–20