Vikram David Amar, Residual State Power to Regulate Presidential Qualifications in the Wake of Trump v. Anderson and Moore v. Harper, 2025 Wis. L. Rev. 311 (2025).
In Trump v. Anderson, the Supreme Court refused to permit states to
implement Section 3 of the Fourteenth Amendment and disqualify candidates
for federal office under that provision. Yet under Article II of the
Constitution, states as entities enjoy wide latitude to pick electors who in turn
select Presidents. This latitude has been confirmed by the Court in Chiafalo
v. Washington and (implicitly) in Moore v. Harper, and is in no way
constrained by U.S. Term Limits, Inc. v. Thornton (insofar as the latter deals
specifically with congressional elections, a matter over which states do not
enjoy the same discretion they enjoy concerning presidential selection).
Because, this Article argues, the Anderson ruling, however dubious, does
nothing to cut back on state power to exclude, as a matter of state law,
persons who have engaged in rebellion from being considered for a state’s
support in a presidential contest, states can accomplish via state law what the
Court said Colorado could not do under Section 3. This reality in turn makes
the Anderson ruling, and its rationale (emphasizing the need for uniformity
among states), even more unconvincing.
