Peter M. Shane (Ohio State University (OSU) – Michael E. Moritz College of Law) has posted The Least Harmful Way to Leave Trump on the Ballot on SSRN. Here is the abstract:
For prudential reasons, the Supreme Court is likely to resist upholding the judgment of the Colorado Supreme Court disqualifying Donald J. Trump under the Fourteenth Amendment from appearing on a presidential primary ballot. If that prediction is correct notwithstanding the compelling arguments offered in defense of the Colorado decision, the way in which the Supreme Court reaches its result will be critical. The Court's least harmful restrained construction of the Fourteenth Amendment would say that, concerning the offices of president and vice-president and those offices only, Section 3 requires a national implementing statute. This would not represent an exoneration of Trump. It would also not require that the presidency remain open to insurrectionists. It would not require a federal statute to bar other insurrectionist former office-holders from occupying any positions within Section 3’s purview. It would merely insist that, because of the unique complexities of electing the president and vice president, the Disqualification Clause can operate on national candidates only under a process prescribed by Congress. Such an interpretation would also uphold the associational rights of voters on a nation-wide basis as the Supreme Court has done in other ballot access contexts.