Earlier, I blogged my skepticism about a state’s power to review the qualifications of a congressional candidate and exclude that candidate from the ballot, specifically referring to a Section 3 of the Fourteenth Amendment challenge to Representative Madison Cawthorn’s candidacy. Not everyone is terribly supportive of the “strong” version of this argument I set out. But let me suggest a “weak” version of the argument.
Assume that my thesis is wrong, and a state may evaluate the qualification of a candidate for office as a condition of appearing on the ballot. A 15-year-old could not appear on the ballot, for instance.
But states may not add qualifications to candidates seeking congressional office. That’s U.S. Term Limits v. Thornton. And some state enforcement of existing qualifications rules could function as an additional requirement.
Consider the age example, and let’s begin with President Joe Biden. In 1972, Biden first ran for Senate at the age of 29. He was not eligible to serve in the Senate. But, after Election Day–after he was elected–he turned 30. He presented his credentials to the Senate several weeks after Election Day and was seated.
If Delaware had excluded Biden from the ballot on the basis that Biden was “ineligible” as of Election Day–or, really, at the ballot access deadline weeks before Election Day–it would have impermissibly added a qualification to a candidate seeking federal office.
The same is true for inhabitancy rules. Article I conditions that no person can serve as a Representative “who shall not, when elected, be an inhabitant of that state in which he shall be chosen.” A state has no power to evaluate inhabitancy before Election Day, because it would add a qualification to a candidate seeking federal office.
Now, to whether one has “engaged in insurrection.” We know, as of today, at least, whether one’s participation in activities in and around January 6, 2021 rises to the level of a Section 3 violation. (Let’s stipulate for our purposes that a candidate has done so.)
But there’s a catch: “Congress may by a vote of two-thirds of each House, remove such disability.” This is an odd qualification, because a disqualification that Congress itself can change. And as of today, we don’t know whether Congress will or will not remove that qualification before Election Day–or before January 3, 2023, in the event that candidate is elected. Put differently, a state like North Carolina can’t condition ballot access on whether, as of today, you’ve engaged insurrection, because it would add a qualification.
This appears to be a strange rule. We might not know whether someone is qualified until after he’s elected? And then, what, we leave it Congress to sort it out?
But it was entirely sensible in 1868. States didn’t administer the ballot. For the House, voters filled out pieces of paper, or they dropped tickets printed and distributed by political parties into the ballot box. The state didn’t filter who could or couldn’t appear on the ballot, because that was entirely left to the voters.
I don’t know whether the federal collateral attack on North Carolina’s ballot access review process will succeed (there are abstention hurdles to overcome, among other things), but whether a state court or a federal court reviews the question first, it’s worth highlighting the “weak” version of the argument that states cannot review the qualifications of candidates.