Or Who Qualifies For A State’s Ballot

Whatever comes of this case, remarkable to hear oral arguments at the Supreme Court about whether the ex-President being an insurrectionist is just another ballot access issue, like being the right age or living within a district's lines.

— Susan Glasser (@sbg1) February 8, 2024

But states decide those issues on a regular basis, and non-major party candidates regularly disappear without notice.

The Court expressly said this is not “another ballot access issue,” but needs to explain why not.

That’s gonna be the gaping hole in the opinion. 🕳️ 

 Not to argue with my commenters:

The one tack I see: this is the only qual issue that can be addressed by Congress (contra age, natural born, term limits, etc), so that makes it different.

No, Trump's speculative argument about Congressional action isn't any good, but I suspect something along these lines.

Does that make section 3 non-self executing? That was another issue bandied about (but largely ignored) in argument this morning.  If it is, why is it left to Congress to decided on a case-by-case basis who is, or is not, guilty of "insurrection"?  I find that argument specious because:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. 

I'm not quite sure why "insurrection" is the key word, and "rebellion" isn't, but oh, well.  That last sentence seems to me to be so this section is not a "death sentence," final and irreversible; but it also clearly means Congress removes the disability on a case-by-case basis.  I'm not sure where in there it also says Congress must establish the grounds for the disability, too, and the mechanism for determining it.  I think they meant to make it clear the people have decided that, through the ratification process.

The Court sort of grappled with that today, but seemed content to regard the political implications of the consequences of applying the plain language here.  I know the shadow of Bush v. Gore is supposed to hang over them, but the problem there was a "per curiam" order on a 5-4 vote, and almost no reference (IIRC) to the Electoral Count Act which was the basis for the opinion.  There, Congress had acted and the Supremes were following their lead (there was a deadline looming).  Here, the Court is wimping out and, as I've said, erasing section 3 on the basis that, they don't want to get involved.

I keep coming back to that, I know.  I just think "This is too political, leave it to Congress" is completely the wrong answer to the question. Had the Warren Court done that in Brown v Board, where would be be today?

Besides, failure to get the signatures necessary to get on a state ballot, or to meet the deadlines for same, vary by state and keep a lot of people out in the cold with no chance to let the voters decide.  Who mostly decide by staying home.  That "none of the above" vote in the Nevada primary was because it was available. not because it was a surprising sentiment.  15% of Iowa voters bothered to caucus.  Well over 40% of New Hampshire voters didn't pick Trump.  Winner-take-all leaves a lot of people dissatisfied and out in the electoal cold, which is pretty much the way the power-that-be like it.

The Supreme Court is pretty nakedly their handmaiden.