In the Wall Street Journal, John C. Harrison & Saikrishna Prakash: If Trump Is Disqualified, He Can Still Run. From the introduction:
The Colorado Supreme Court on Tuesday ordered that Donald Trump’s name not appear on next year’s Republican presidential primary ballot. The court found that Mr. Trump “engaged in insurrection” on Jan. 6, 2021, and that Section 3 of the 14th Amendment bars a person who has done so from serving as president. Even if these findings are both correct, the Constitution doesn’t bar Mr. Trump from the ballot.
Presidents are selected through an indirect, drawn-out process. In November 2024, voters will choose presidential electors. When voting, citizens will see the names of presidential candidates when, in fact, they are voting for the electors who will later vote for president.
One problem for the Colorado court’s ruling is that the 14th Amendment never declares that voters can’t select presidential electors who are pledged to vote for nonqualified candidates. The 14th Amendment disqualifies certain people from holding federal and state office and doesn’t explicitly regulate ballot access. Nor does it expressly authorize state officials to judge the qualifications of candidates or electors.
The more decisive flaw is that the ruling ignores a key provision of the 20th Amendment, which provides: “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified” (emphasis added). …
Agreed! Assuming Trump is disqualified by Section 3 of the Fourteenth Amendment, he is disqualified from taking office as President. The relevant language is "No person shall … hold any office …" That language doesn't prevent him from seeking office. It doesn't prevent Republicans from nominating him. It doesn't prevent him from appearing on the ballot. It doesn't prevent electors from pledging to vote for him, and it doesn't prevent them from voting for him. It just prevents him from holding office.
But:
Article II, Section 1 says: "Each State shall appoint, in such Manner as the Legislature thereof shall direct, a Number of Electors" who then vote for the President. Pursuant to this clause, states have established a popular vote to select a person for whom state electors are required to vote. And in creating this process, I would think that states can provide that only persons actually qualified to hold the office can appear on the ballot as candidates for the office.
Thus, assuming that Colorado law so provides, and assuming that Trump is actually disqualified from holding the office by Section 3, the Colorado court is correct that as a matter of state law Trump is barred from appearing on the ballot. That is, Professors Harrison and Prakash are correct that Section 3 doesn't bar Trump from the ballot, but the Colorado court is correct (under the relevant assumptions) that he is barred in Colorado.
And further: even though the bar is a matter of state law, it depends on a conclusion of federal law. (My special civil procedure consultant tells me this is called an "embedded federal issue.") So the U.S. Supreme Court has jurisdiction to review it.
(Via How Appealing.)
UPDATE: Andrew Hyman comments:
I agree that Section 3 does not require removal of an “insurrectionist” from the ballot, but does prevent him from “holding” office (as I mentioned back in September). Michael Ramsey suggests that state law rather than federal law might nevertheless require such a person to be removed from the ballot, but I’m skeptical. If the 20th Amendment postpones qualifications until after the election, then apparently it postpones both state and federal qualifications, not just federal ones. Even putting aside the 20th Amendment, we get the same result, because cases like Powell v. McCormack confirm that lists of qualifications in the Constitution are exclusive; we should distinguish qualifications for office-seekers as opposed to qualifications for office-holders. The qualification in Section 3 is only for office-holders, but the other presidential qualifications (in Article II of the Constitution) treat office-seekers and office-holders the same, so they would likely bar states from adding to the qualifications of office-seekers.
Posted at 3:45 PM