Charlie Martel has posted this draft on SSRN. Here is the abstract:

This article is an argument for a federal constitutional right to vote for president at a time when voting rights are under grave threat. The Supreme Court has twice held that under the Constitution, states have such “plenary power” to choose presidential electors that they can exclude citizens from voting for president.

The article explains why the Supreme Court cases rejecting the citizens’ right to vote were wrong. My first argument is textualism. The plain language in the five constitutional right to vote amendments demonstrates there is a right to vote for president. From there, the article demonstrates that the Court’s plenary power cases rest on irredeemably flawed Jim Crow era precedent abrogated by constitutional amendment and historical evolution of the right to vote. Further, the “plenary power” anti-democracy Court cases are irreconcilable with other Court precedent recognizing that the right to vote is foundational to all rights. I also make two consequentialist arguments: first, plenary state power to choose presidents has racist, sexist, and ageist results, and second, that the usurpation of the citizens’ right to vote for president would be catastrophic for democracy and the country. The article provides a framework for making the right to vote the new normative standard for evaluating presidential election disputes.