Introduction
On January 6, 2021, a mob attacked the United States Capitol to overthrow the certification of the legitimately elected president and install the election loser, Donald Trump. Before this, there was another coup attempt. Trump and his team pressured state legislators and officials not to certify legitimately elected presidential electors, and to instead certify fake electors for Trump. This was based on the theory that the Constitution grants states “plenary power” to select presidential electors, even if this means cancelling citizen elections or rejecting their outcome. The coups failed—this time.
There should be no next time. The Supreme Court should reject the “plenary power” theory, and rule instead that citizens have a right to vote for president under the Constitution.
The “plenary power” theory is radically wrong because several constitutional amendments establish that citizens have what the Constitution calls a “right to vote”—including the right to choose presidential electors. The “plenary power” theory was born in Supreme Court decisions during the late 1800s Jim Crow era and re-embraced by the Court in its controversial 2000 Bush v. Gore decision. This Article explains how the “plenary power” theory is wrong as a matter of constitutional textualism, irreconcilable with other Court right-to-vote precedent, abrogated by history, and irredeemably illegitimate because of its juridical origins in racism and sexism.