“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,”
Justice Elena Kagan, during oral arguments.
Well, my response, with all due respect, is that the constitution has already settled that question. Allow me to explain:
The role of the states in deciding who gets to be president, per the constitution:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.
Article II, Section 1, Clause 2.
en.m.wikipedia.org/...
So the constitution clearly puts the responsibility of choosing each state’s electors in their own hands, and explicitly excludes members of Congress (Senators and Representatives) from participating in the process.
Furthermore, the constitution defers to the State Legislatures the authority to regulate their own state elections. And the selection of Electors, and thus the states’ representatives to the Electoral College and indeed how those electors are apportioned (winner take all in most states, apportioned by congressional district in ME and NE).
As voters here in the United States, we don’t directly elect the president. Instead we elect the Electors for our state.
So, who gets to decide who can be president? It’s a question that the constitution has thoroughly answered: the States, collectively.
Okay, but what about the Ballots?
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.
Article I, Section 4, Clause 1
Again, we see that the Constitution grants the authority to the states to decide the Manner of their elections, including primaries, and very much on point, ballot access. Congress has the power to make changes, but must do so by action, and in no way has assumed authority by inaction. And I assume that we’re all familiar with the insurrection clause in the 14th amendment, but as a refresher:
No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.
Ah-ha! Congress may by a 2/3 vote may remove the “disability,” but that doesn’t mean that they are the arbiters of whether the ability applies in the first place.
So, if Congress has no constitutional authority to grant ballot access or to determine eligibility, merely to restore it, then the act referring the matter of the Colorado Primary Election ballot to Congress itself has no legal basis.