The Supreme Court this week ruled unanimously that Donald Trump could not be excluded from the Colorado primaries, or any others, on the 14th amendment grounds.
The court was understandably troubled by the idea that each state could decide their own interpretations of an Federal law/amendment for a Federal election. States shouldn’t each have their own independent criteria.
The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).
The “patchwork” that would likely result from state enforcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole.
It is bad to have patchwork laws, says the court. That would be chaos. I agree!
But what is the difference between that and the other election actions States take on their own?
States determine the number and placement of voting locations. They determine what ID is accepted. They used to decide on poll taxes and literacy tests. They decide on their electors. They decide what forms of early voting are allowed, and the process by which those are counted. They decide what the triggers are for recounts and the process of doing those. And much more.
Do you remember Bush v Gore? Florida had a quirky set of rules and a quirky ballot and what-do-ya-know that ended up deciding the election. We got massive debt and a ridiculous foreign war instead climate action. Thems the breaks. So the hypothetical chaos that justifies overturning Colorado’s decision is not hypothetical. It already exists. If it already exists, so how can it be so repugnant that it justifies re-interpreting the 14th amendment?
There is no good answer today. The Constitution clearly gives states the right to run their elections (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors…”). Just as clearly, States cannot run their elections with no limits at all. There is no good legal principle to decide when the States or Federal government makes the rules for any specific part of the elections process. The Supreme Court will keep dipping in and out of election particulars with consistency.
The answer is to amend the Constitution. America needs an affirmative right to vote. There is already an excellent organization, FairVote, devoted to this idea. Here is the proposed text:
SECTION 1. Every citizen of the United States, who is of legal voting age, shall have the fundamental right to vote in any public election held in the jurisdiction in which the citizen resides.
SECTION 2. Congress shall have the power to enforce and implement this article by appropriate legislation.
Throw in the National Popular Vote, and maybe someday elections could just reflect the will of the people.
