“What the Colorado Oral Argument Missed”

For The Atlantic:

The justices seem ready to leave the issue of Donald Trump’s eligibility up to Congress. Here’s why they shouldn’t.”

After acknowledging why the justices would be inclined to rely on Trump’s congressional exclusivity argument, the piece details some relevant history that cuts the other way.

A snippet:

“At the oral argument, Justice Samuel Alito asked Murray to suppose that a “legislature really doesn’t like candidate A, thinks candidate A is an insurrectionist, so the legislature passes a law ordering its electors to vote for the other candidate. Do you think the state has that power?” Murray was a bit tentative in his answer, almost as if he were embarrassed by this constitutional provision. He should have been much more emphatic in declaring that, absolutely, this is the way our presidential elections are set up.”

For example, in 1868, the first presidential election after ratification of the Fourteenth Amendment, “Florida’s legislature took back the power to appoint the state’s electors.” The pro-Reconstruction legislature wanted to make sure that anti-Reconstruction voters couldn’t give the state’s electoral votes to Grant’s Democratic opponent.

Also, Ohio’s legislature rejected Clement Vallandigham’s candidacy for the U.S. Senate that same year for fear that he was disqualified by his pro-Confederate conduct during the Civil War. The state’s legislature, or any other, could also have made sure that the state’s presidential electors would not vote for Vallandigham if he had been the Democratic nominee that year.

More details and links in the piece, which ends with a reiteration of the concern raised in the amicus brief I worked on with Rick Hasen, Ben Ginsberg, and Michael Kimberly (and mentioned in the oral argument) about what might happen if the Court punts the disqualification issue back to Congress by relying upon Trump’s congressional exclusivity argument.

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