The question whether Donald Trump is disqualified from the presidency may be one of the most debated and difficult ones the U.S. Supreme Court has considered. But I think that the Court (for now) need not decide it.
To begin, it seems beyond dispute that Section 3 of the Fourteenth Amendment at most only disqualifies people from serving as President — not from running for President. (This point has been made by several commentators, notably John Harrison and Saikrishna Prakash here). Section 3 declares: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States" if they engaged in insurrection. Further, Section 3 expressly provides that Congress can lift the disqualification, and the Twentieth Amendment expressly contemplates that a disqualified person may be elected President and then have the disqualification removed. Thus Section 3 in itself does not require that anyone be removed from any ballot.
In the Colorado case barring Trump from the ballot, which the Supreme Court has agreed to review, the removal directive came (according to the Colorado court) not from Section 3 itself, but from a Colorado state law providing that only persons qualified for the presidency can appear on the presidential ballot. Thus (the Colorado court said) it had to decide whether Trump was disqualified under Section 3 in order to implement the state ballot access law.
That seems correct as far as it goes, but it raises the question whether the applicable state law is constitutional. Can a state, on its own authority, decide that a person can't be on the presidential ballot? (Remember that Section 3 is not authority for keeping anyone off the ballot.)
To some extent, the answer is yes. Article II, Section 1 provides: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors" who select the President. Exercising this power, Colorado (like other states) has directed that the selection of electors follows from a popular vote of the people of the state, through a primary election and then a general election. And in providing for balloting in these elections, the state legislature surely has some power to direct how — the "manner" in which — a person qualifies to appear on the ballot.
That brings us to Anderson v. Celebrezze, a 1983 Supreme Court case invalidating an Ohio law that governed how an independent candidate could appear on the presidential ballot. According to the majority, courts must balance "the character and magnitude" of the plaintiff's injury and "the interests asserted by the State to justify the burden imposed by its rule." Anderson has a number of problems, especially for originalists: it was decided by a narrow 5-4 nonoriginalist majority with Justices O'Connor and Rehnquist — the nearest to originalists on the Court at the time — in dissent; it announced a subjective and indeterminate balancing test; and it may well have been wrongly decided even on its own terms. But the Anderson court seemed to be on to something nonetheless: surely there are some limits on a state's ability to determine the "manner" of choosing electors — and, if the state decides to use a popular ballot, some limit on its ability to decide who can appear on the ballot. (Feats of strength, or rolls of the dice, presumably would be excluded.)
Moreover, limits on ballot access seem particularly troublesome in the context of a primary election (as in the Colorado case). In effect, the state tells the Colorado Republican Party who it can propose to its own members as a potential candidate to support at the Republican National Convention. Anderson v. Celebrezze rested its limits on state ballot access laws in large part on the First Amendment. Whether that was the right approach in Anderson, it seems particularly pertinent in the Colorado case: denying Trump access to the ballot denies Colorado Republicans the ability to speak in his favor through the selection of Trump-supporting Convention delegates. Consider: could Colorado decree that Republicans could only choose among delegates supporting candidates of good moral character (as determined, say, by a state elections board)?
Even apart from the First Amendment, it would seem that there are some limits implicit in the state's Article II power to prescribe the "manner" of choosing. Deciding the "manner" is distinct from deciding the substance. States are not obliged to select electors based on popular elections. But once they do, their power over the "manner" seems not to extend to telling voters whom they can and cannot select (provided candidates comply with appropriate procedures). Could a state pass a statute declaring that Donald Trump (by name) cannot be a candidate? That seems to go beyond a regulation of the manner of choosing.
Colorado would presumably respond that, although it can't arbitrarily exclude candidates from the ballot, here it has a good (indeed, constitutionally based) reason. It's confusing and inefficient to have candidates on the ballot who aren't eligible to serve in the relevant office. For example, it would be pointless and misleading to voters to allow a person who is indisputably not a natural born citizen to appear on the presidential ballot.
I'm not sure even the natural born citizen argument works in the context of a primary ballot. If Colorado Republicans want to select Convention delegates who favor an ineligible candidate (perhaps for symbolic reasons), that does not seem to be a concern of the state. But in any event, Section 3 is an entirely different matter. As noted above, a Section 3 disqualification can be lifted by Congress. Further, in Trump's case, there is considerable factual dispute whether he is disqualified. Additional facts may come to light bearing on the disqualification. And Congress might specify how these factual disputes should be resolved. To consider a not-completely-implausible scenario, suppose Trump wins a majority of electoral votes, and Republicans win control of both the House and Senate. Congress, using its power under Section 5 of the Fourteenth Amendment, could provide by statute that disqualification under Section 3 requires a prior criminal conviction for insurrection. As a result, Republicans might think it appropriate to support someone whose eligibility to serve is in doubt.
Thus, I suggest that Colorado does not have sufficient interest in keeping Trump off the primary ballot, merely because its state courts think he would (as matters currently stand) be ineligible to serve as President in the future. One could see this limit arising from the First Amendment rights of Colorado Republicans to support their preferred candidate (consistent with Anderson), or as arising directly from the state's Article II, Section 1 power to prescribe only the "manner" of selecting electors.
In either event, the Supreme Court at this juncture can decide narrowly that Colorado's ballot access law, as applied to Trump, is unconstitutional. Nothing in the Constitution prevents Trump from running for the presidency. The question whether Section 3 disqualifies him from "holding" the office of President need only be decided if and when he is elected. And ultimately the Constitution provides a remedy: if Trump is elected but ineligible to serve, the Twentieth Amendment directs that the elected vice-president would act as President.
Of course, one might say that it would better for the Court to decide the disqualification question now, to prevent chaos after the election. That may well be true. My point here is only that the Court does not have to decide it.
(Note: this posts extends and to some extent reconsiders an earlier post commenting on the essay by Professors Harrison and Prakash.)
Posted at 6:18 AM