Earlier this week, the U.S. Supreme Court issued a 9-0/5-4 decision in Anderson vs. Trump — the Section 3 case out of Colorado.  The majority opinion was a textbook example of the problem with originalism as the three opinions attempted to divine what the framers of the Fourteenth Amendment would have wanted a court looking at this issue to do.  The opinion was NOT a textualist opinion.  Instead, it was an ahistorical attempt to reason how the Congress that proposed (and the state legislatures that ratified) the amendment would have thought the rule would be for this type of case.

To understand the problem,  we first need to understand the “real” world of the 1860s.  Elections were run differently back then.  Today, every state uses a variation of the “Australian ballot.”  The essence of the Australian ballot is a pre-printed unmarked ballot containing all of the names of all of the candidates for all of the offices which the voter marks in the voting booth.  Prior to the adoption of the Australian ballot, depending on the state and location, votes were either public or involved a paper ballot.  In states with paper ballots, “party” newspapers (or the party itself) printed the party’s “ticket” — a ballot with all of the offices with only that party’s candidate for the office listed.  In other words, candidates did not file for office with the election authority prior to the election, and there was no official ballot.  Thus, even when the local party put forward an ineligible, there was no means to disqualify a candidate before that candidate won.

In this type of system, by necessity, any challenge to the eligibility of a candidate had to come after the election.  There were two ways to challenge the eligibility of candidate/office holder.  First, one of the other candidates could file an election challenge (assuming that state law permitted such a challenge).  While, in some states, this might have been a viable method  for challenging a local official, it works less well (even today) for those elected to state legislatures and federal positions.   In many states for the state legislature and for Congress, the final say on the validity of election results rests with the legislative body (either Congress or the respective state legislature).  As we saw back in 2008, even on an expedited basis, there is not enough time for an election dispute to go through the court process before the new term begins.  Not surprisingly, in the 1860s and 1870s, if a former Confederate were elected to Congress, Congress handled the matter by not seating the new member of Congress rather than state courts resolving the issue.  As there was never an ineligible person who received any electoral votes for president, there simply is no historical precedent for how Congress would have handled that issue. Continue Reading...