It may well require that Congress remove excessive barriers to the ballot and prevent election interference.
The U.S. government recently had “a very busy week” responding to Russian attempts to interfere in U.S. politics and elections in particular. This busy week came as the government continued to address the fallout from an apparent Iranian effort to hack and leak Trump campaign documents. Other actors within and outside government are focused on domestic policy that affects free and fair elections—related to gerrymandering, voter intimidation, and mail-in voting, among other issues. But nearly absent from these conversations is an important clause of the Constitution that undergirds the whole concept of U.S. governance: the Guarantee Clause.
Officials in both parties have joined the ongoing debate about election integrity. Their responses, however, seem to prioritize boosting their respective electoral odds. Democrats, for instance, have advanced automatic voter registration laws to increase the size of the electorate. Republicans, in contrast, have advanced policies likely to diminish turnout, such as more stringent voter ID requirements. These and other changes address every aspect of state electoral politics: who votes, where, when, how, and for whom.
The cumulative effect of these reforms has led good governance advocates to mount legal challenges against policies that undermine the foundational aspects of a republican form of government: self-governance, political equality, and political accountability. So far, groups such as the Brennan Center have struggled to win those legal contests—both in court and in the political arena. Courts have eroded legal protections through arguably flawed interpretations of election laws. And the parties themselves—at the state and national levels—have generally doubled down on partisan strategies, despite viable alternatives more in line with republican values. The Guarantee Clause, a forgotten source of protection against anti-republican developments, however, can and should become a shield against election manipulation by any actor.
The clause, Article IV, Section 4, of the Constitution, places an unavoidable duty on each branch of the federal government to ensure that state governments maintain their republican nature. Put differently, the clause mandates that Congress, the executive, and the judiciary intervene when public or private actors hinder any of the aforementioned republican values. Faulty interpretations of a small number of Supreme Court cases have led some members of the legal community to believe the clause is more or less the constitutional equivalent of the appendix. But a more holistic assessment of the clause—one based on its text, structure, history, and case law—reveals it is anything but vestigial. In fact, the clause may provide an understudied means to prevent anti-republican actions of government today from generating features of oligarchic, monarchic, or tyrannical government tomorrow.
Contemporary Anti-Republican Actions
Fair, free, and regular elections are foundational to republican governance. Fears of election manipulation remain high on both sides of the aisle. Democrats, for example, have warned that Republicans in control of state election bodies are poised to disrupt valid elections. They point to Georgia’s State Election Board as a prime example. The board, led by a Republican majority, recently approved two rules that allow county officials in the state to question election results prior to certifying the results. Republicans have alleged that Democrats have enabled migrants to cross the border for the explicit purpose of having those individuals illegally participate in the election. Independent voters have likewise long expressed concerns about both parties designing elections in a way that limits their political equality. In states dominated by a single party that operate closed partisan primaries, such as Oregon, independent voters have no real impact on the final selection: Whoever wins the closed Democratic primary is destined to win the general election in Oregon.
States have in many cases acquiesced to the concerns of the dominant political party by adopting or permitting that party’s preferred policies, regardless of whether those policies might run counter to fundamental republican values. Parties in 14 other states host closed primaries. To the extent these primaries occur in states where the general election is not meaningfully competitive, as in Oregon, they serve as the de facto general election. Under such conditions, a fraction of a fraction of the electorate—the limited number of Democrats or Republicans who opt to participate in the primary—selects the state’s leaders and federal representatives. This system seems to fly in the face of self-governance and appears sufficient to trigger the Guarantee Clause.
These states exclude a significant portion of their political communities. As of 2022, nonaffiliated voters in Oregon outnumbered Democratic voters by a count of 1,022,556 to 1,019,668; yet, the former were excluded from the critical stage of the election. It is hard to imagine a better example of an anti-republican election than one that denies a plurality of the voting population a meaningful right to choose their representatives.
Several states have recently reduced the number of polling places at the direction of partisan actors. Since 2018, polling places have declined with each election. In that election, around 200,000 polling places were available. The number of stations in the 2020 election dropped to about 132,000. The 2022 election included fewer than 100,000 polling places. The fewer polling places there are, the more likely it is that voters will have to wait an unacceptably long time to cast their votes—perhaps reaching an anti-republican threshold. The Presidential Commission on Election Administration (PCEA) regards any wait time over 30 minutes as unacceptable. The MIT Election Lab estimated that 18 percent of voters waited longer than the PCEA’s recommendation in the 2020 election.
Counties in several states have also failed to update their election systems to allow for more transparent and fair elections. About 7 percent of voting jurisdictions relied on direct-recording electronic (DRE) devices without voter-verified paper audit trails in the 2022 election. Experts warn that DREs may undermine electoral transparency and security. Some forms of postelection audits are not possible in DRE jurisdictions. Given the stakes of the 2024 election and the likelihood of the results being contested, reliance on DREs without paper audit trails in even a few jurisdictions could further promote distrust in American elections—accelerating and prolonging a trend of people opting out of the very process intended to ensure officials remain accountable to the people.
These electoral developments all amplify concerns about electoral manipulation by at least one group of voters. What’s more, they all seem to run counter to one or more of the hallmarks of republican governance. Voting procedures that severely limit participation by voters undercut self-governance. Last-minute changes to state election procedures, like those in Georgia, raise concerns about voters having their legally cast votes delayed or, worse, thrown out. Political equality is in question when partisan or state actors allow some citizens to effectively exercise more electoral influence than others. And political accountability decreases whenever officials fail to maximize transparency within reason. These developments represent just some of the anti-republican changes to elections. This status quo is untenable for at least two reasons. First, election manipulation fosters distrust in elections, which can lead to a panoply of democratic problems from less voter participation to postelection violence. Second, it may conflict with constitutional law.
Rediscovering the Meaning and Relevance of the Guarantee Clause
Advocates for a more objective assessment of free and fair elections have contested these policies under a few laws and through specific federal agencies. They have generally been disappointed with the results. Recent court decisions have watered down the substance of many laws related to election integrity. Scholars have noted the erosion of pro-republican governance protections afforded by the Voting Rights Act, for instance. Federal agencies tasked with implementing policies characteristic of republican governance have likewise been called out for falling short of advocates’ expectations. For example, though the Federal Election Commission “has recently made incremental progress on several emerging regulatory issues,” it is also the case that “its record of nonenforcement remains largely the same”—according to Daniel Weiner and Owen Bacskai of the Brennan Center.
Depending on the state, advocates may also find that their local and state officials are unwilling to or uninterested in considering certain proposals. The dozens of county commissioners who refused to certify the 2020 election results seem unlikely to entertain proposals that may increase the odds of Democratic success at the ballot. Secretaries of state, facing heightened scrutiny amid election interference concerns, may also avoid taking any neutral actions if the consequences of those actions benefit one party over another (such as policies related to voter registration). But the limited opportunities for statutory relief and, in some cases, limited assistance from local and state officials does not mean that advocates for republican governance lack the ability to identify and halt anti-republican actions and laws.
The Guarantee Clause provides a forgotten check on anti-republican laws and practices. For centuries, legal scholars and courts have persistently misread Luther v. Borden. That 1849 case supposedly stands for judicial aversion to ever interpreting the clause on the merits. Luther, though, was a narrow, bespoke decision. Eight years after a revolution to replace the Rhode Island government failed, the justices avoided the question of which of the rival governments was legally in charge—a decision that, if made in favor of the defeated revolutionary government, would have required returning all taxes collected and vacating all laws made since the end of the so-called Dorr War. The Court unsurprisingly deferred to the political branches to resolve the dispute. Guarantee Clause cases, though, can arise under very different facts. To expand Luther to apply to all relevant cases is interpretative inflation.
A more accurate interpretation of the clause, as well as of the Court’s jurisprudence, instead reveals that the clause may be triggered whenever the aggregate power of the contemporary political community is sufficiently diminished, when the use of that power by an individual community member or part of the community is sufficiently constrained, or both.
Pursuant to the Guarantee Clause, the federal government “shall guarantee to every State in this Union a Republican Form of Government.” Use of any common tool of statutory interpretation makes clear that this clause imposes an affirmative duty on the government. A textual reading, for example, leaves little doubt. The use of “shall” rather than “may” leaves little interpretative wiggle room as to whether the clause places an obligation on the government. Comparable uses of “shall” in the Constitution affirm this understanding.
Examination of the meaning of “guarantee” reinforces this interpretation. Professor Ryan Williams conducted a thorough analysis of contemporaneous uses of “guarantee” in legal devices around the time of the Founding. That inquiry uncovered that “the text of the provision and contextual evidence regarding its original understanding strongly suggest that the provision more likely reflected a quasi-diplomatic, treaty-like commitment on the part of the federal government to its quasi-sovereign component states.” The 1786 edition of Johnson’s Dictionary bolsters Willams’s interpretation. “To guarantee” meant “to undertake to secure the performance of any articles.” “To secure” meant “to make certain, to make safe, to protect, to put out of hazard.” Application of these definitions to the text of the clause clarifies the proactive and ongoing obligations of the federal government.
This commitment makes sense given the internal upheaval that characterized the United States under the Articles of Confederation. Under that flawed governing document, states rightfully came to fear that unrest in one state might spill over. That fear was largely the product of Shays’s Rebellion. When a group of debtors in Massachusetts organized to shut down civil courts to prevent further foreclosures on delinquent properties, the state government had to turn to a privately financed army to quell the rebels. Members of the public and elected officials alike realized the need for a more robust check on chaos within individual states, and that which might spill over from one state to another. The Guarantee Clause emerged in response to those concerns—requiring each state to “surrender[] those powers which might make them dangerous to each other.” More specifically, states acquiesced to the possibility of federal intervention to prevent an anti-republican contagion from spreading both within and beyond the state’s borders.
While the imposition of a duty is clear, the nature of that duty is less clear. Neither scholars nor courts have precisely defined the phrase “republican form of government.” As a matter of constitutional necessity, at least 13 forms of government—those of the initial states—qualify as republican. The common characteristics of those initial state governments provide some insight into the hallmarks of republican governance. Variance among these governments indicates that republican governance cannot be distilled into a simple and exhaustive checklist. The result is that republican governance has often been defined by negation—mostly juxtaposed against aristocracy and monarchy.
The lived experiences of the Founders led to widespread concern about two threats to republican governance in the states: the potential for unrest in one state to disturb others and, in particular, the establishment of a monarchy or an aristocracy precipitating such unrest. That said, had those been the exclusive governmental forms that gave rise to their concerns, the Founders presumably would have in the Guarantee Clause simply forbidden aristocracy and monarchy. The decision to instead prohibit anti-republican developments or “innovations” in the states expands the protective sphere of the clause. This expanded approach merits a closer look at what the Founders likely characterized as republican governance and, more abstractly, as republican ideals.
The core of the guarantee in the minds of the Founding generation appears to have been rule by the people. Patrick Henry distilled this idea further to mean regular and free elections. James Madison added in Federalist No. 39 that it was essential that the power delegated to elected officials be from the “great body of the society, not from an inconsiderable proportion, or a favored class of it.” At the Constitutional Convention, he connected the dots between that necessary condition and elections when he labeled the right of suffrage as “one of the fundamental articles of republican government.” Thomas Jefferson likewise tied republican governance to representation and rules established by the majority. A turn to “republican” in the 1786 edition of Johnson’s Dictionary indicates that Henry, Madison, and Jefferson advanced what was then a common understanding of the term. “Republican” referred to “placing the government in the people.”
Stitching these terms together, the Guarantee Clause mandates the whole of the federal government take responsibility for majority rule in the form of regular elections. Citizens who find themselves increasingly governed by anti-republican laws are not without recourse. Similarly, advocates for good governance need not rely on handicapped election laws as the sole means of defending self-governance, political equality, and political accountability. These individuals and entities are running out of time to recognize the duty imposed on the federal government by the Guarantee Clause. New and old threats to republican governance are already threatening to disrupt the robust participation that is core to such a form of government. Efforts to interfere with the election have already occurred, may increase in the coming weeks, and may persist after Election Day. These and other developments—legal and otherwise—must be halted if republican governance is to be maintained and advanced in practice.
The Requirements of the Guarantee Clause in the Current Threat Environment
What constitutes the proper remedy for lacking republican governance in a particular state depends on the nature of the state’s shortcomings and the contemporary republican norms. When the Reconstruction Congress relied on the Guarantee Clause to develop the conditions under which rebel states could rejoin the Union, they added requirements that went above and beyond those that characterized the state governments at the Founding. The clause was cited as the authority for the Reconstruction Acts of 1867, which initially permitted federal intervention in the Southern states until “loyal and republican State governments [could] be legally established.” Establishment of such governments required that “male citizens of said State, twenty-one years old and upward, of whatever race, color, or previous condition” receive the right to vote. The Second Reconstruction Act went further—creating federally operated boards of registration tasked with monitoring state officials and overseeing local and state elections. The Third Act amplified the powers of those boards and made other interventions.
The conception of republican governance advanced by the Reconstruction Congress differed markedly from that of the Founders. This discrepancy was not lost on the former group or on the courts that heard challenges to the acts. Still, the Supreme Court “tacitly endorsed Congress’s actions during Reconstruction,” though it later substantially narrowed the intended by-products of that legislative era. Why the Court later returned to a Luther-esque understanding of the clause is an open question. In 1912, the Court revived and expanded Luther to decide a case related to state use of direct democracy tools on jurisdictional grounds. Then, in 1946, the Court again inflated Luther to effectively prohibit any challenge to a republican form of government under the Guarantee Clause in court.
This interpretation suggests the Founders erred when drafting the clause. As outlined above, a textual, historical, and structural reading of the clause undergirds Congress’s authority and obligation to enforce it. This duty may include but is not limited to “making it a crime or a tort to attempt to keep people from exercising the rights necessary to a republican form of government—including the rights of members of the political community to vote, speak, publish, assemble, protest, and organize politically.” As public and private parties come up with new means to limit those rights, Congress must respond in kind.
Congress’s enforcement power is necessarily an evolving one. Republican governance has morphed in meaning since the Revolution. The political community that defined the late 1700s was far out of date by the late 1800s. Likewise, the Reconstruction Era political community does not exist today. What it means to fully exercise political control over election officials has also shifted since those periods. Just as the obligations on the federal government adjusted during Reconstruction, those obligations must also be altered to reflect modern times. Today, upward of 90 percent of Americans say the right to vote is “extremely important or very important to the United States’ identity as a nation.” Nearly 80 percent support some form of early voting. Sixty-five percent back automatic voter registration laws. And almost 60 percent oppose the reduction of ballot drop-off locations.
States blatantly in defiance of these modern attributes of republican self-governance threaten the cohesion and uniformity that spurred the Founders to adopt the Guarantee Clause. Whether self-governance-limiting election policies merit congressional intervention should be subject to robust debate. The first step in that process is realizing that Congress has the authority to hold such a debate under the Guarantee Clause. “Congress may” under the Guarantee Clause “regulate state elections in the interest of preserving the republican nature of their governments,” as Arthur Bonfield recognized in 1961 and early Americans intended as of 1789. Pursuant to the duty imposed by the clause, Congress “may legislate to insure that all elections are fairly held, and that no person is deprived by unrepublican qualifications either of the ballot or of the right to hold office.” Denying Congress the authority to intervene in a manner permitted under the Guarantee Clause is unconstitutional, regardless of the desirability of the results that intervention would generate. Any congressional action, though, must still be subject to judicial review. In short, the Guarantee Clause must not give Congress carte blanche to disturb state affairs—its actions must be responsive to the anti-republican developments in question.
This back and forth between Congress and the Court may lead to an unfortunate and troubling conflict between the branches. Congress, for instance, may regard the exclusion of certain individuals from the broader political community as unrepublican, and the Court may disagree. This could result in a period of uncertainty as to how the states may actually govern. However, in making that determination on the merits, the Court would at least breathe life into a dormant provision of the Constitution that was very much intended to come alive during unstable political periods. This is better on balance. The two branches can and should debate the outer bounds of republican governance, especially at the current turbulent moment, even if doing so leads to contested and controversial outcomes.
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No part of the federal government can dodge duties outlined by a valid constitutional provision. The Guarantee Clause may be a “sleeping giant,” as Sen. Charles Sumner noted in 1867, but a sleeping clause is distinct from a vestigial one.
