Why Shouldn't There be 50 Different Disqualification Rules?

We leave many issues up to the states, including ballot access.

One common refrain seen when reading analyses of the current debate regarding the Disqualification Clause of the 14th Amendment is that surely the Supreme Court will make a sweeping rule regarding some aspect of it (definition of insurrection, due process of enforcement, etc.) to spare us from having a patchwork of 50 different rules, one for each state. The consensus conclusion is that the Supreme Court will have to lay down ground rules on this issue to avoid the chaos that would result from this.

But this is just logic of convenience. It does not reflect what is already the reality of our federal system, or our tolerance for diversity of laws and regulations.

There’s already many laws that differ greatly across states that govern the same subject matter. It’s something we’ve known and accepted since the beginning of the republic. Famously, or infamously rather, the SC just ruled in 2022 that the issue of regulation of abortion should be determined by the states, showing a disdain for the sweeping ruling of Roe v. Wade that was perceived to have created a right out of thin air. Of course, the proponents of the life and liberty clause of the 14th Amendment had some disagreements about this.

But the current conservative SC ruled that such matters should be left to the states. So now we are to accept that the only way to function moving forward on Federal elections would be for there to be one overarching rule determining what the disqualification clause means and how it should be applied? What would be the reason the states can’t handle these questions, but can handle so many others, at least according to the SC?

Most ballot access issues determined by each state, including ones mentioned in the Constitution, such as the minimum age or citizenship status. There are many wide-ranging rules regarding these issues and each state has their own baseline requirements, that are either determined by the Parties themselves or by the state legislature. There are filing deadlines, of course. Some require a minimum number of signatures. Some require a significant filing fee. For example, Florida Republicans require a minimum $25,000 filing fee, which can be increased to $100k under some conditions.

Understand that I’m not arguing that is should be left to the states. I think for the sake of simplicity and clarity, and general election efficiency, that there should be an overarching rule. To me it would be like the Voting Rights Act, or recent attempts, mostly by Democrats, to make voting in Federal elections easier and more secure at the same time, while tamping down on individual states’ voting suppression efforts.

Congress is Constitutionally endowed with the ability to make rules for Federal elections after all. So why should the SC determine this rule? Wouldn’t it be similar to the abortion rules that were created by a previous SC, and determined to be inadequate at best or bad law interpretation at worst by this same SC?

The best case scenario would be for Congress to pass a law that sets out the guidelines of the meaning of this clause and the enforcement mechanism. Alas, that didn’t happen at the time of the passage of the 14th Amendment, and certainly won’t be happening anytime soon. However, the fact that it’s not the SC’s fault that Congress has taken no action, or is unlikely to, doesn’t mean they should fill in the void.

The assumption that the SC should final arbiter on this is a politically biased one. Many people would be upset, it might spark violence, etc. Also, what about retaliation? Some Republican lawmakers are already threatening to remove Biden from the ballot in their states. See how this could sprial out of control?

So many things these days are determined by what we want to avoid at all costs. Because of these potential abhorrent outcomes, the SC should settle the issue and keep Trump on all ballots, and find some originalist argument to use to do so, it is said. At this point, it would hurt their legitimacy to be so brazenly hypocritical, but they are still likely to find a way.

But someone will always be upset about SC decisions. So far, violence in response to SC decisions has been minimal, almost nonexistent. And if there is widespread violence, whose fault is that? Not the SC’s, but the fault of the perpetrators and their leaders. And sure, go ahead and try to remove Biden from ballots to due…what? Insurrection? Because of the Mexican border situation? Good luck winning that argument in court. This is highly unlikely to stand, unless Biden goes out to the border sometime this year and stirs up the migrants to motivate them to storm the Capitol.

The most reasonable approach is for the SC to keep the status quo, let the states determine their own ballot access determinants, and tell Congress that if they want this fixed, they have to be the ones that do it. Will it make the 2024 election messy and exhausting? Yes, probably, but that is the reality of the current political era. Many issues that have never been dealt with before are being pushed to the forefront. It’s our responsibility to deal with them.