How Presidential Elections Work (Because Apparently the Supreme Court Needs a Refresher)

So they held oral argument this morning in the case about whether Colorado can keep Trump off the Republican primary ballot because he’s an insurrectionist and hence disqualified by Section Three of the Fourteenth Amendment. I didn’t, you know, listen to it, because that sounds unpleasant. But by all accounts they’re going to rule in Trump’s favor, basically on the grounds that there’s a federal interest in not letting states disqualify eligible candidates to federal office. There are a lot of problems with that ruling. But there’s one extremely important underlying issue that I think has a tendency to get overlooked.

States do not have to hold popular elections for president.

The Constitution says that the state legislatures are to decide upon the manner of choosing electors. And it is very well established that one thing they can do with this power is just… choose some electors themselves, by fiat. Which in practice means choosing which candidate for president they want their electors to support, again, by fiat of the state legislature.

Now it’s been a very long time since any state has done that. Instead, they hold popular elections. Formally what those elections entail is basically that the legislature is asking for help from the people of their state in making up their mind about whom to support for president. Many states would do this for Senate, in the time before the Seventeenth Amendment; these were sometimes referred to as “beauty contests,” because they didn’t really have any force in and of themselves.

Now it’s been held that once a state decides to have a popular election to choose its electors, a bunch of constitutional rules — most notably the Equal Protection Clause — apply; they can’t just structure that election however they want. This was the premise of the ruling in Bush v. Gore, sort of. And while its use there was insultingly dumb, the basic idea has merit: a state could not, consistent with the Constitution, decide to consult only the white voters about whom to support for president.

But that’s at the level of the voters. It really seems to me that there’s nothing in the federal Constitution that says that the state must allow the public to choose among every single qualified candidate for president, if it chooses to consult them at all. That is true of congressional elections, I think, but that’s because the Constitution expressly says that they are to be chosen by direct election. The actual right of choosing belongs to the voters. Thus the Court has held that states can’t keep members of Congress who have already served a certain number of terms off the ballot.

But all of this is just not true for president! And I can’t see how it doesn’t follow that, if the legislature could say “we pick this guy” or it could say “nah we’ll let the voters decide,” it could also say, for instance, “well we want one of these two people, but we’re not sure which one, so we’ll let the voters choose between them.” In other words you could dispense with all the questions of “ballot access” by legislative fiat, and just have a handful of candidates themselves chosen by the legislature on the ballot.

And if that’s right, if you can do that, then, well… I think the entire premise of the ruling everyone’s anticipating is just total garbage.

Quelle surprise.