Brook Thomas in Slate:
Oral arguments in the Supreme Court for Donald Trump v. Norma Anderson last week exposed a historical issue that none of the excellent amicus briefs by historians anticipated. Briefs led by Jill Lepore and Vernon Burton convincingly show that the framers of Section 3 of the 14th Amendment would have intended to make Donald Trump ineligible for the office of president. But the Colorado case is about eligibility for the ballot, not for office. The framers of Section 3 would not have considered that question because in 1866, ballots as we know them today did not exist.
That historical anomaly will make it easy for the Supreme Court to rule against Colorado. But if it does, it will punt on the more important question of Trump’s eligibility for office.
Understanding the full history here is critical. Official ballots printed by each state, listing the names of all candidates qualified to run, came into existence only with the adoption of the secret ballot later in the 19th century. Prior to that time, no one had to qualify to appear on a ballot. Political parties, not states, printed them with only their candidates’ names. Party officials gave them to voters, who placed them in a ballot box. If voters wanted, they could create their own ballot and write in any candidate they preferred. State officials then tallied the ballots. The votes for people ineligible for office were simply not tallied. Those who felt that their votes had been incorrectly thrown out by local officials had to appeal to state officials or the courts….