The Supreme Court’s Ballot Decision Rests on Two Fallacies

In the most controversial electoral decision since Bush v. Gore, the US Supreme Court unanimously overruled the Colorado Supreme Court’s decision disqualifying former president Donald Trump from the primary ballot, reasoning that Congress, not individual states, have constitutional authority to disqualify candidates. The united nature of the decision doesn’t restore the court’s waning legitimacy amid several ethics controversies, nor does it render it constitutionally sound.

The court’s decision implies that unanimity, and thereby institutional legitimacy, is more important than applying the Disqualification Clause as intended by the Framers who drafted it, states that approved it, and ultimately, the people who voted for it.

Unanimity is also apparently more important than addressing the more complex interpretive questions before the court: whether the Disqualification Clause applies to the presidency (it does), whether Jan. 6 was an insurrection (it was), and whether the Disqualification Clause requires affirmative congressional action (it doesn’t).

The Fourteenth Amendment wasn’t just a small change in our constitutional structure. It made the Constitution, for the first time in our history, a vehicle for people to claim greater equality, and it articulated national standards for election to federal office, preventing any person who “engaged in insurrection or rebellion” from the privilege of elected office.

Any honest legal analysis involving the Disqualification Clause—particularly by so-called originalists—requires great attention to the Fourteenth Amendment’s founding history in the larger context of our Constitutional structure mandating election federalism, permitting states to qualify candidates and voters for state and federal elections.

The court’s decision rests upon two fallacies. The first posits the Disqualification Clause isn’t self-executing, meaning congressional legislation is required to disqualify a candidate for federal office, and states have no constitutional role in this process. This isn’t so.

During Congressional debates, the Fourteenth Amendment’s principal drafter, Congressman John Bingham, rejected legislation that would mirror the Disqualification Clause—because it was a foregone conclusion that the text and our federalism form of government would work in tandem to bar ineligible candidates from taking office.

After the Fourteenth Amendment’s ratification, scores of candidates for the Virginia legislature were prevented from taking office because they fought for the Confederacy. Their exclusion was self-executing. It required no affirmative act of Congress because the amendment’s drafters intended, and understood it to permit each state great latitude in formulating standards by which to implement the Disqualification Clause.

And if the clause isn’t self-executing, it follows that the Fourteenth Amendment’s other provisions providing for citizenship rights and equal protection under the law would also require congressional statutes to take effect, but they don’t.

Congress didn’t have to act to declare the formerly enslaved people citizens of the US after the Fourteenth Amendment was ratified; the Constitution did that on its own. Congress also didn’t have to act to enforce desegregated public schools under the Equal Protection Clause—the court did. Why do the constitutional rules change for the Disqualification Clause in light of its founding intentions?

The court’s second fallacy turns election federalism on its head by holding states don’t have broad discretion to qualify voters and candidates substantively and procedurally; only Congress has that power. This isn’t so. The Disqualification Clause articulated a constitutional floor by which states could qualify candidates for state and federal office—this is a widely accepted notion in American constitutional law. Despite the court’s decision, nothing prevents states from adopting stricter eligibility rules than those articulated in Section 3.

The court’s decision doesn’t preclude states from passing laws disqualifying candidates who engage in conduct similar to that of Trump in 2020 and 2021, nor does it prevent Congress from discarding electoral votes cast for a constitutionally ineligible candidate.

These views aren’t an application of results-oriented constitutional interpretation or “progressive originalism.” They reflect arguments advanced by originalist scholars and Federalist Society members on the sweep and force of Section 3: It requires no legislation or judicial decision to enforce. In his last dissent on the bench, Justice Thurgood Marshall said, “Power, not reason, is the new currency of this Court’s decision-making.”

His warning has come to the fore as the court disregards the Constitution’s text, original public meaning, historical context, and federalist structure in punting Trump’s disqualification to Congress in what may be the most important election in American history.

The case is Trump v. Anderson, U.S., 23-719, 3/4/24, US, No. 23-719, decided 3/4/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Maureen Edobor is assistant professor of law at Washington and Lee University School of Law.

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