There's a limit to the power of the 14th

The Colorado State Supreme Court in the U.S. recently ruled that Trump, due to his insurrectionist actions, according to Section 3 of the 14th Amendment to the U.S. Constitution, can be denied a place on the ballot of the state. It is expected to be appealed to the Supreme Court of the U.S. (SCOTUS). However, I believe the Colorado Court and many members of Congress and media pundits are missing an important distinction in the wording of the 14th Amendment.

Simply stated, no person who has “engaged in insurrection or rebellion” against the U.S. Constitution can “hold any office, civil or military” in the U.S. As states have been constitutionally granted control of the procedures in elections, the Colorado Court and many others interpret the 14th as meaning that the states have the power to remove such individuals from ballots. Note that in this Amendment, and indeed in the entire Constitution, there is no clause limiting the choices a voter may have in any election. In other words, there is no provision for keeping voters from voting for whomever (or whatever) they want by removing candidates’ names from ballots or deciding not to count certain votes.

The “whatever” idea mentioned has resulted in some rather strange election results: In 1938, a brown mule won 51 to zero and served on a precinct seat in Milton, Washington. In Lajitas, Texas, the mayoral election candidates included a human, a wooden statue, a dog, and a goat; the goat won. There are actually many similar examples. Even dead individuals have won elections!

Currently states do have and exercise their power regarding listing and counting votes. However, there is no constitutional provision granting them the explicit right to decide who will be on the ballot or which votes will be counted. When a state does that, it is in effect denying the voter the right of choice, which is granted in the Constitution. This concept is in the same 14th Amendment in its first section:

“... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...”

Additionally, the Constitution’s “Supremacy Clause” (Article IV, Clause 2) stipulates that federal law overrides state laws. We note that in the 1995 SCOTUS decision in U.S. Term Limits v. Thornton, the Court explained: “[T]he Framers understood the Elections Clause as a grant of authority to issue procedural regulations, and not as a source of power to dictate electoral outcomes, to favor or disfavor a class of candidates, or to evade important constitutional restraints.”

Thus the only power states are explicitly given is to manage the procedures involved in managing elections.

Although Trump will not be permitted to serve even if elected, it is incorrect for states to keep him off the ballot, or to refuse to count write-in votes that may include his name. In other words, even if he were overwhelmingly elected as president, he still could not serve in that office.

I fully expect that when these ballot qualifications are taken up by SCOTUS, they will rule that, while the 14th can keep insurrectionists like Trump from serving in office, the states do not have a constitutional authority to choose who will or will not be on the ballots and that any and all votes, however seemingly frivolous, must be counted.