Reader Michael Resanovic sends these comments on my prior post regarding states adding qualifications for presidency:
The Union is essentially a compact of compacts. Parties to any compact retain all of the freedom that they naturally have absent the compact, save what they have collectively surrendered in entering into it. I do not question the permanency of the Union, or that it is possible to amend the constitution so as to take away any of the electoral discretion that is being discussed. But just as private individuals may do anything they may naturally until the social compact is altered to remove the right, states likewise enjoy freedom to add qualifications for Congress – or for their share of the presidential vote – until that discretion is properly ended by their common consent.
Now, I am aware of dicta in both the majority and dissents in Thornton stating that states may not add qualifications for the presidency. Here, I would suggest a distinction between adding qualifications for the presidency and adding qualifications for one’s vote:
Surely if a state only wants 45 year olds, it cannot pretend the President is not really President because the Electoral College just elected a 35 year old! But saying that a state may not control qualifications for the office itself is not the same as saying that it may not control its own voting power.
The Governorship of Ohio has no minimum age. However, if I privately determine to allow no one under 50 to have my vote, I am free to do so. The qualifications for my vote are what I say they are. I would suggest that the same principle pertains to the states.
If a state legislature is free to hold an internal vote, it is presumably free to write its own balloting rules so as to limit itself to the consideration of candidates who have, say, never served before (a one-term limit). It would appear to me that nothing prohibits it from referring the matter to the people under the same rules. I know you expressed disagreement as to this in a recent post “The Supreme Court Doesn’t Need to Decide (for now) Whether Trump is Disqualified”, asserting that if a public election were held, qualifications could not be added. I wonder if you could elaborate on why that is so. Neither the people collectively nor individually could claim that they are being denied something they necessarily must have. It’s not like a congressional election where a popular vote must be held, something that in Thomas’ view still did not prevent the people from adding qualifications. Indeed, what if the people themselves want a particular restriction, or even use their state constitution to order that the legislature refer the election to the people with such restrictions? To quote Professor McGinnis, “…the states reserve the power […] because nowhere in the Constitution did they surrender that power.”
By way of a normative objection, one might say that the people can simply not vote for that person, but then we encounter the same problem that motivated the term limits movement in the case of Congressional elections. The structure of elections can often create an artificial bias in favor of incumbents despite unpopularity. Trump v Biden is a case in point. But whatever can be said about what ought or ought not be law, nothing appears to me to stand in the way of a state imposing such limits.
Posted at 1:36 PM