Law professor Kurt Lash has shown that the crafting of Section 3 to omit the president was not an oversight. As his work shows, an earlier draft of the clause expressly mentioned the president; that mention was removed. And many (digital) trees have been felled to address a related issue: Whether the president is properly described as occupying an “office of the United States”? At best, that work is ambiguous, though the Colorado Supreme Court made a strong argument that the president is.
But what is not ambiguous is whether it would be “absurd” to exclude the president from the reach of Section 3: because it is plainly not absurd. Indeed, excluding the president and vice president from the scope of the clause makes perfect sense.
Lash argues that it could make sense because the framers of that clause likely expected it to apply to Civil War insurrectionists alone. No one, he argues, feared an insurrectionist presidential candidate after 1865. What they feared was insurrectionists in Congress. Other parts of the 14th Amendment are plausibly read as targeting the Civil War alone. This clause, on that understanding, could be so read as well.
But even if one assumes that Section 3 was meant to be prospective, there is an obvious reason why the only two nationally elected officers would be excluded from its reach. It took mere moments after the Colorado Supreme Court’s ruling to see why, as Texas Lt. Gov. Dan Patrick threatened to remove President Joe Biden from the Texas ballot as retribution. You see, with every other officer excluded under the provision, the state official or state court effecting that exclusion would feel the political costs of their decision alone. If the Missouri secretary of state decides that Josh Hawley was an insurrectionist — for both advancing a plainly illegal theory under which Congress could reverse the electoral votes of Pennsylvania, and for rallying the rioters on Jan. 6 with his now-infamous salute — then Missouri and its voters will bear the political costs of that decision alone. Its act would not impose a cost on other states. But if state officials from blue states can remove red state candidates, or vice versa, that state bears no cost. Instead, it gains a political victory. In the language of economics, the decision imposes an externality on the nation, which is exactly the kind of decision that states alone should not be making for other states. Such behavior is obvious to lead to a tit for tat and a breakdown of our entire electoral system.