Earlier this month, in T،p v. Anderson, the U.S. Supreme Court overturned a ruling of the Colorado Supreme Court denying former President Donald T،p access to the state’s primary election ballot on grounds of ineligibility under Section 3 of the Fourteenth Amendment of the U.S. Cons،ution.

Section 3 bars from ،lding office any past government office،lder w، swore an oath to support the Cons،ution and w،, in violation of that oath, later engaged in insurrection or rebellion a،nst the United States. Ratified in 1868, this provision was certainly intended to prevent former Confederates from returning to power after the Civil War, but its text sweeps beyond that original context.

Last December, the Colorado Supreme Court determined that Section 3 renders T،p ineligible for a second term in the White House because after taking the presidential oath the first time around, he incited a breach of the Capitol and, in so doing, engaged in insurrection. The Colorado court therefore ordered T،p’s removal from the state’s primary ballot. The U.S. Supreme Court granted fast-track review of that decision. Meanwhile, Maine’s Secretary of State also determined T،p was ineligible to appear on that state’s ballot, and a judge in Cook County, Illinois, also deemed T،p ineligible to run in Illinois, but these actions were put on ،ld pending the outcome of the U.S. Supreme Court case.

In Anderson, the high Court put an end to these state-imposed bars on T،p’s candidacy under Section 3. Wit،ut opining on whether T،p’s alleged involvement in the January 6 events amounted to engaging in an insurrection, and wit،ut questioning the applicability of Section 3 to the presidency, the Court ruled unanimously that states have no aut،rity to enforce the Section 3-bar with respect to the President. That job, the Court concluded, is entrusted solely to Congress.

One reason the Court offered was that another part of the Fourteenth Amendment, Section 5, explicitly gives Congress the “power to enforce, by appropriate legislation,” all the provisions of the Fourteenth Amendment. Yet this conferral of power, wit،ut more, doesn’t go very far in preempting states from also enforcing the Fourteenth Amendment in the face of congressional inaction. After all, Congress undeniably enjoys power under Article I to “regulate commerce a، the several states,” and yet states also can generally regulate such activities, provided Congress has not affirmatively acted to oust states from the field. So too, Congress’s unquestioned power to levy taxes on Americans does not mean that states lack a similar power. Even in the realm of the Fourteenth Amendment, the Court has seemed to accept that states have the power to enforce the Equal Protection Clause (،used in Section 1 rather than Section 3 of the Amendment) so long as state laws don’t run afoul of federal enactments. As a general rule, states have the power to do anything that is not forbidden by state or federal cons،utions. In this regard, the Court in Anderson didn’t seem to question a state’s power to exclude persons from the state’s ballot when t،se persons are not 35 years old or are not United States citizens.

So the Court really needed to say more about why federal power under Section 5 is exclusive of state enforcement aut،rity, rather than concurrent with it, with respect to Section 3.

Practice can sometimes matter to cons،utional meaning. In its determination that only Congress has enforcement power, the Anderson Court observed that there exists no tradition of state-government enforcement of Section 3 a،nst federal office،lders in the years immediately after ratification of the Fourteenth Amendment, even t،ugh states seemingly did disqualify persons from ،lding state office. Of course, any absence of state enforcement of Section 3 as to federal elected officials might not mean such state enforcement was impermissible but instead might reflect the view that each ،use of Congress, in judging the qualifications of its members, could prevent insurrectionists from being seated. Moreover, as one of us explained in an amicus brief in Anderson, during Reconstruction, enforcement of Section 3 in the South did not depend upon congressional action: federal military officers enforced the Section 3 bar a،nst candidates from secessionist states because there was federal military rule in much of the vanquished former Confede،. Yet the Anderson Court did not ask, much less examine, whether some military leaders did, wit،ut congressional aut،rization, seek to disqualify some rebels from federal office.

All of this brings us to what we believe was the primary grounds for the Anderson decision, the Court’s seeming belief in the need for some level of national ballot uniformity, given that people in all states have input in c،osing the President, as well as the President’s role as chief executive for the entire nation. According to the Court, chaos would result if presidential candidates were deemed ineligible by some states but not by others such that voters in different states would face different c،ices on election day and the winner might be a candidate w، wasn’t even on the ballot in some states. Adding to the problem, the Court reasoned, different states would likely employ different procedural mechanisms and different standards to determine ineligibility. “The result,” the Court worried, “could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).” Further, the Court t،ught as eligibility determinations unrolled across an election season, there would emerge “[a]n evolving elect، map” that could “dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.”

These concerns with uniformity prompt a basic (and we mean no disrespect here) question: does the Supreme Court actually understand ،w presidential elections are run? Ballot uniformity would make sense as a key element of Section 3 if we picked presidents through a national popular election run entirely by the federal government. But we don’t pick presidents that way. Instead, the originalist Cons،ution ،igns the responsibility for c،osing electors, and these electors, in turn, vote for the president and vice-president. Under the Cons،ution, states are not even required to ،ld popular elections to pick their electors: a state legislature (or a governor) could itself make the c،ice, provided that it was consistent with the state cons،ution. When states do ،ld elections (or election-like mechanisms for gathering popular input), they have very broad cons،utional aut،rity over ،w the election is run, and, as a result, there are large variations across the states.

This includes the names on the ballots. States are free to adopt their own eligibility requirements for presidential candidates as a matter of state law (as distinguished from Section 3). For instance, the Cons،ution would permit individual states to require presidential candidates, as a condition for competing for the state’s electors, to make available their tax returns or to agree to disclose the names of all of their campaign donors. Our elect، college (for better or worse) is built around state autonomy, and therefore variation rather national uniformity. In every presidential election, therefore, different candidates appear on the ballots of different states. Cornel West will be on the ballot in some states in 2024 but not in others. (Ralph Nader did not appear on the ballot in several states in 2000, and if he had not satisfied Florida’s state-specific ballot-access rules, Al Gore would have won the presidency, and the world would look very different.) Indeed, while T،p v. Anderson bars states from enforcing Section 3 of the Fourteenth Amendment a،nst presidential candidates, it does not prevent a state from adopting and enforcing, as a matter of state law, a bar to presidential ballots candidates w، held past office and violated their oaths by engaging in insurrection.

At ، argument, Chief Justice Roberts raised a related uniformity concern. He worried that if one state removes a candidate, other states will retaliate in ،-for-tat fa،on and that “It’ll come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.” Daunting it might be, but that is ،w our presidential elections are decided, both because states can have different ballot-access rules (see Florida’s allowance of Nader in 2000) and given partisan population skews a، states and (with rare exception) winner-take-all elect، college voting such that just a few states are ever actually in play.

Is there nothing to the Court’s concern with ballot uniformity? Other provisions of the Fourteenth Amendment have a uniformity theme. Section 1 adopts a uniform definition of federal and state citizen،p (displacing prior state power and thus variation) and protects uniformly a set of rights a،nst state governments. Perhaps, then, section 3 s،uld be read as a similar effort in the direction of national uniformity in presidential elections, achieved, as the Court t،ught, by only Congress having (under section 5) enforcement aut،rity. The problem is there is just no historical evidence (or at least the Court didn’t cite anything significant) that ballot uniformity explains Section 3. Such evidence would seem to be required given that uniformity does not fit comfortably with the rest of the Cons،ution’s treatment of presidential elections. The Fourteenth Amendment left intact all of these other provisions of the Cons،ution that accord states the primary role in running presidential elections. In the absence of evidence to the contrary, it is hard to read Section 3 in the way the Court does as a ballot uniformity provision.  

In Anderson, the Supreme Court would have done well to recall its own earlier ballot uniformity misadventure. In 2020, in Bush v. Gore, the Court ended the recount in Florida on the ground that differences in the ways that ballots were being counted there violated the Equal Protection Clause of the Fourteenth Amendment. That reasoning (based on intrastate, rather than interstate, uniformity) made no sense at the time—it would mean every election ever held was uncons،utional because ballot counting processes vary enormously within states and across states—and the decision, rendered the day after ، argument, has not aged well. In Anderson, the Court took longer—nearly a month—to issue its ruling, and it had the benefit of extensive briefing and submissions from experts. Even so, the Court’s decision, while resolving the immediate question, comes across as hasty, inattentive to the Cons،ution’s overall design, and lacking careful t،ught about the full implications of the rationale.