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Kagans reasoning is so fucking stupid. No one has the right to run for president and kicking one person off doesn't "decide who is president" it means they're not qualified. If I was 34 and tried to run they would say I'm not qualified...not that the state was deciding I couldn't be president.
The constitution is very clear about who is eligible to be president.
Constitutionally, aside from those who don’t qualify, yes everyone does have the right to run for president.
There are a couple arguments regarding “the office” and “an official” and “participated in an insurrection” that may or may not disqualify someone from being federally permitted to “be” president or permitted to be on a state election ballot. States already have different rules to make it onto a ballot. Just in the past couple weeks, Biden wasn’t on the NH primary ballot (he won as a write in).
If all the red states decided they didn’t want Biden on the ballot, they could decide who would be president before the election even took place. To prevent that from happening, it needs to be determined what the rules are and the legal precedent needs to be established for state courts to decide the legal battles.
We all know what happened on January 6th. But there’s a lot of people who want to misrepresent that history. I can’t believe this is the case but it is now reasonable to assume that a state could make up new history and say Biden was a participant in insurrection or guilty of treason and disqualify him from being on the ballot.
If a state wanted, it could just decide to let the state legislature pick the electors and not hold a popular vote at all. The US Constitution just says that each state appoints electors "in such Manner as the Legislature thereof may direct." It's only state laws and state constitutions that create requirements to let the people vote, so a state could repeal those for itself unilaterally.
For example, here's the relevant section of law in Georgia (OCGA § 21-2-10):
("Electors of this state" means the voting public, while "presidential electors" means the people getting nominated to the Electoral College.)
All GA would have to do is repeal that paragraph and then the General Assembly could pick whatever presidential electors they wanted, public preference be damned (at least until the legislators themselves were up for re-election).
I was surprised this wasn't raised as a counterargument by the Colorado attorney when the "one state could determine who's elected" argument was made. (If it was, I missed it.) The justices are worried that states (let's just say it: "red states") could make up some frivolous reason to keep someone off the ballot and disqualify them, but the brutal reality is that they could do it already by screwing with the electors. (Hell, Trump and his co-conspirators tried sending fake electors from some states.) Setting a precedent allowing states to use Section 3 of the 14th Amendment just give states another way to accomplish this. "Oh, Biden tripped walking up to a podium? That's insurrection!"
What's really sad/outrageous is that Trump and the GOP have so terribly warped and perverted the political norms in this country that we have to even consider the possibility of states fabricating frivolous reasons to keep someone off the ballot. We can't keep a 91 felon count indicted insurrectionist, fraudster, and rapist from getting elected and destroying democracy because his friends may avenge him by abusing and misapplying the law in the future. This really sucks.