reversing Colorado’s choice to remove Donald Trump from the ballot, the judgment of which was joined by all nine justices, was obviously correct. What’s not obvious is why so many thought the court would—or should—go the other way.Amendment. That clause disqualifies certain insurrectionists from holding certain federal and state offices. The issue the court resolved, unanimously, is whether states have the power to enforce that provision against a federal officer or candidate.
That is ordinarily the correct procedure. But it is a good thing that the court went beyond ordinary procedure in this case, because a move that some Democrats were considering for disqualifying Trump would have been a disaster. It was wrong in its conception because Congress’ job is not to adjudicate whether the candidate whose votes they are counting is qualified. The only basis the Electoral Count Reform Act gives for excluding an electoral vote for a candidate is that the electoral vote was not “regularly given.
The idea that any state judge could declare a presidential candidate an “insurrectionist,” and thereby exclude him or her from the ballot, is wrong. Obviously, there needs to be a regular procedure to make that determination, and obviously, there can’t be 51 different procedures in all the jurisdictions that send electoral votes to Congress. So, obviously, this is not a matter for the states; it is a matter for the federal government.
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