Given that a clear majority of Republican voters believe that Joe Biden’s presidential victory last year was fraudulent, it is no surprise that Republican-controlled state legislatures are enacting laws that change how votes are cast and counted. Some even would have state legislatures select their Electoral College electors, thereby ignoring that state’s popular vote won by the Democratic presidential candidate.

Because Republicans control 30 state legislatures, these efforts obviously are meant to tilt — and likely decide — the outcome of the 2024 presidential election.

Hawaii is the rare state whose recent changes actually expanded voter access, and the percentage of eligible voters who voted increased significantly in 2020.

Nonetheless, everyone who believes in the popular vote — the bedrock of any democracy — should read and heed the guarantee articulated in Section 2 of the 14th Amendment. That constitutional text specifically provides that if state legislatures interfere with the popular vote for the Electoral College electors, such states are to have the size of their congressional delegation reduced. When a state loses House seats, it thereby also loses Electoral College votes.

The 39th Congress wrote the 14th Amendment right after the Civil War, when terms for readmission of states that seceded were unsettled and passionately debated. Section 2 conditioned state readmission on a specific guarantee that, for numerous public offices, states could not interfere with the vote by all eligible voters: When the Fourteenth Amendment was ratified in 1868, for the first time this included Black men and all other 21-year-old male citizens “except for participation in rebellion, or other crime.” Eligible voters, the Constitution now proclaimed, could not have their votes “denied … or in any way abridged.”

Section 2’s guarantee first specified “any election for the choice of electors for President and Vice President of the United States.” And Section 2 dictated the penalty: If a state “denied” or “in any way abridged” votes by any eligible voters, its representation “shall be reduced.”

This clause has never been invoked, though clearly it should have been when states used multiple ways — some ingenious, a great many brutal — to block the votes of Black citizens. The Voting Rights Act of 1965 was desperately needed against systemic barriers to free and fair voting. Yet recently the U.S. Supreme Court has demonstrated remarkable unconcern about burdens on voting — for example, by refusing to intervene against even egregious political gerrymandering. The Court also has invalidated or severely limited key provisions of the Voting Rights Act.

It is noteworthy that the Framers of the Constitution — honoring the principle that just powers derive from the consent of the governed — repeatedly affirmed that the people of a state choose the electors. They so declared in the Federalist Papers and the state ratifying conventions. Nonetheless, when Thomas Jefferson was elected president in 1800, John Adams sought to cling to power by relying on lame-duck state legislators, some elected as long before as 1796. Adams’s strategy was roundly condemned as unconstitutional, and directly rejected in several states.

By the 1830s, states no longer allowed legislatures to choose electors. Only South Carolina held out, yet acknowledged in 1865 that this had been a “gross error” and “usurpation.” An 1868 southern state plan to revive the practice was similarly denounced. Founders’ intent and subsequent history make clear that the people elect the electors. Nonetheless, there is now a clear and present danger that state legislators are poised to ignore the vote of the people. It is now vital to underscore our nation’s commitment to direct popular voting.

Rejection of the so-called “independent state legislature doctrine” cannot be left to federal court judges. The U.S. House could right now adopt a resolution to refuse to seat representatives from states that abridge the people’s fundamental right to elect the president. State courts can enforce voting rights embodied in their state constitutions. And Congress should invoke its power through the 14th and 15th Amendments Enforcement Clauses — including power not to count electoral votes — to honor the broadening of the popular franchise by these amendments, as made specific in Section 2.

The people’s authority currently is very much at risk. Choosing our national leaders surely must remain “of the people, by the people, for the people.”

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A version of this commentary appeared last month in “The Hill,” a newspaper and media site for political news.

Aviam Soifer recently completed 17 years as dean of the William S. Richardson School of Law at the University of Hawaii; Mark Bohnhorst is a retired public sector attorney with 24 years of service in the University of Minnesota’s Office of General Counsel.