Sue Halpern in the New Yorker:

Minnesota is one of three states in which nonprofits have recruited high-profile voters, including current and former Republicans, to file Section 3 lawsuits. A similar case in Michigan, brought by F.S.F.P. together with local attorneys, aims to compel Secretary of State Jocelyn Benson to leave Trump’s name off the ballot. Meanwhile, in Colorado, Citizens for Responsibility and Ethics in Washington (crew), a nonpartisan watchdog organization, is suing Trump and Jena Griswold, the Colorado secretary of state. There is some irony that the suit names them both as co-defendants: Griswold deems Trump a danger to the country, blames him for the storming of the U.S. Capitol on January 6th, and considers that day an insurrection.

In the coming year, these cases could inflame political divisions and cast a shadow of uncertainty over the 2024 election. The Trump supporters behind the January 6th attacks claimed that an election was stolen from them; now that their violence, and Trump’s role in it, has led to lawsuits, more claims of a stolen or rigged election could follow. Even Anderson, as a petitioner in Minnesota, worries about what would happen if Trump were actually disqualified from elections. “I am very concerned that it could lead to people being violent,” he told me. “There are people who will want to vote for him, and think it’s their right to vote for him—and that’s a scary proposition.”…

Perhaps the most powerful objection to using Section 3 to keep Trump off the ballot is that it is undemocratic to prevent the American people from voting for the candidate of their choice. This is the position of another prominent conservative jurist, Michael W. McConnell. “We are talking about empowering partisan politicians such as state secretaries of state to disqualify their political opponents from the ballot, depriving voters of the ability to elect candidates of their choice,” McConnell has said. “If abused, this is profoundly anti-democratic.” McConnell cites a landmark 1964 civil-rights decision, in Reynolds v. Sims, which declared: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”

Baude and Paulsen counter that this is a political argument, not a legal one—and the Constitution, in their view, is apolitical. There are already restrictions on the people Americans can vote for: a Presidential candidate must be a natural-born American over the age of thirty-five, and the Twenty-second Amendment prohibits a two-term President from running again, even if voters are willing to elect them. There is also precedent for enforcing these restrictions on the state level. Before Neil Gorsuch became a Supreme Court Justice, he sat on the U.S. Court of Appeals for the Tenth Circuit. In 2012, he ruled that Scott Gessler, the Republican secretary of state of Colorado at the time, had the right to “exclude from the ballot candidates who are constitutionally prohibited from assuming office.” (In a curious twist, Gessler is now one of Trump’s lawyers in the Colorado litigation.)…

If the Supreme Court does take on this challenge, they are most likely to take Michael W. McConnell’s advice and rule as narrowly as possible, to prevent Section 3 from being abused in the future. Richard Hasen, an elections-law expert who directs the Safeguarding Democracy Project at U.C.L.A., told me that he is less concerned with how the Court rules than that they do so very quickly. “Sometimes it’s more important for the law to be certain than to be right,” he said. “It will be a disaster if Trump wins the election, and Democrats control Congress, and they don’t let him assume the Presidency because they say he’s not qualified. And, for Republican voters, they shouldn’t be voting for a candidate who’s not qualified. So this needs resolution.”