Rick linked yesterday to a Slate column arguing that an originalist perspective on the pending Colorado case would need to conclude that states don’t have the authority to remove candidates from the ballot in a presidential election because there were no government-provided, or what are usually called Australian, ballots in the U.S. back then. The premise of the column is correct, but not its conclusion.

It’s true that the United States did not widely adopt Australia’s innovation of government-provided ballots until the 1890s, several decades after adoption of the Fourteenth Amendment. At the time, political parties provided the ballots. That was true for the presidential election of 1868, the first after ratification of the Fourteenth Amendment.

It is also true, as Derek observed months ago in an important ELB blog post, that this historical fact necessarily complicates the interpretative question of what power a state legislature has regarding potentially ineligible presidential candidates. But as Derek also recognized at the time, and I emphasized in my follow-up post to his, the difficulty of “translating” the original understanding of Article II’s relationship to the Fourteenth Amendment’s disqualification provision does not mean this interpretative challenge is impossible. Even more, it certainly does not necessarily entail the conclusion that states like Colorado lack the relevant Article II power in this context.

On the contrary, as I’ve endeavored to show in my subsequent work on this topic, including the post-argument The Atlantic essay, the relevant originalist question is whether states in the presidential election of 1868 would have had the power to enact legislation to make sure that the state’s duly appointed electors did not cast their electoral votes for a candidate disqualified by section 3 of the Fourteenth Amendment. I’ve explained, and won’t repeat here, why I believe the best interpretative view of the original understanding on this point is that the ratifiers of the Fourteenth Amendment and other citizens participating in the 1868 presidential election would have viewed state legislatures as having this power. This interpretation of the original understanding is not affected by the lack of Australian ballots at the time. It does not depend on the particular details of how states administered the popular vote for the appointment of presidential electors back then. Instead, the key point is the one confirmed by the Supreme Court in Chiafalo–that the Article II power to determine the “manner” of appointing the state’s electors encompasses a power to dictate whom those electors vote for (and accordingly encompasses the power to dictate that electors do not vote for someone ineligible to hold the office of presidency).