David Froomkin (Yale Law School J.D. '22; Ph.D. candidate, Political Science, Yale University) & Eric Eisner (Yale Law School, J.D. candidate '23) have posted The Self-Executing Second Section of the Fourteenth Amendment (53 pages) on SSRN. Here is the abstract:
This term, the Supreme Court is considering the independent state legislature theory in Moore v. Harper. An extreme form of this theory would hold that a state’s elected lawmakers could choose the state’s Electors for the Electoral College without—or in contravention of the result of—a popular election. Section 2 of the Fourteenth Amendment, for all practical purposes, ensures that states will provide a popular election for selecting Electors in presidential elections. The weight of recent events makes obvious the importance of clear rules safeguarding the integrity of democracy in America. Curiously, however, scholars have paid little attention to Section 2 of the Fourteenth Amendment. When scholars have considered it, they have typically construed it as a grant of authority enabling Congress to pass legislation. We argue that Section 2 is self-executing and no congressional action is needed for Section 2 to prevent state legislatures from circumventing popular elections.
I had not thought about this before, but they seem correct about what Section 2 says.
Posted at 6:32 AM