Matt Ford has this essay in The New Republic, on whether states can keep presidential candidates off the ballot who refuse to release their income tax returns. The piece does not mention the precedent LaRouche v Hannah, 822 SW 2d 632, issued by a unanimous Texas Supreme Court in 1992. That decision says LaRouche could not be kept off the Democratic presidential primary ballot, because to do so would violate Article II of the U.S. Constitution, which sets out the requirements for anyone to serve as president. He was serving a term in federal prison at the time.

Also the article does not mention either Eugene Debs or Vincent Hallinan, presidential candidates in 1920 and 1952. They were both serving time in federal prison at the time of the election, but no state kept them off the ballot for that reason.

Furthermore, the qualifications to run for Congress, listed in Article One, are worded very similarly to the qualifications to run for President in Article Two. Article One says, “No person shall be a representative who shall not have attained the age of twenty five years…”. Article Two says, “No person… shall be eligible to the office of President…who shall not have attained to the age of thirty five years.” It defies common sense to think that the states can’t tamper with the Article One qualifications, but they can tamper with the Article Two qualifications.

The article mentions that states are free to choose presidential electors any way they wish. But this confuses the ability of the states to choose electors, with the ability of states to tell the chosen electors whom they can or can’t vote for. The pending cases in federal court from California, Colorado, and Minnesota, over whether states can tell electors how to vote, are dealing with this distinction. Thanks to Rick Hasen for the link.