Some Article I questions arising out of the federal court’s opinion in Greene v. Raffensperger

Rick linked to the coverage of the federal district court’s decision in Greene v. Raffensperger, which allows an state administrative hearing over Representative Marjorie Taylor Greene’s qualifications to proceed.

I have been critical of these efforts for states to patrol qualifications or to prematurely adjudicate qualifications. I was critical of the federal district court that blocked a challenge to Madison Cawthorn, because, in my judgment, a federal court has no place in determining the applicability of the 1872 Amnesty Act.

Even if you believe the state has the power to review qualifications (again, which I don’t), the decision in Greene has a number of pretty significant problems. It turns out these short-fuse decisions with light briefing on a preliminary injunction standard involving major, novel questions of constitutional law may have a downside….

First, the district court didn’t really understand the concept of “additional” qualifications. As I’ve explained, requiring someone to demonstrate constitutional qualifications too early (e.g., barring a 29-year-old Senate candidate who will be 30 after the election) functions as an additional qualification. The district court wrote, “During oral argument Intervenors’ counsel argued that Plaintiff had waived the argument that Defendants were adding additional qualifications for purposes of Count III by failing to include that argument until her reply brief. The Court need not reach the issue of waiver given its conclusion that Section 3 of the Fourteenth Amendment is an existing constitutional qualification rather than an additional one.”

Of course, I don’t think anyone disagrees that Section 3 disqualifies someone from office. But the “additional” qualification argument doesn’t say Section 3 adds qualifications; it says that the timing of the adjudication of a qualification can be an “additional qualification.

Second, the district court repeatedly, and badly, confused Article I and Article II. It cited two cases, Hassan v. Obama (10th Cir. 2012) and Lindsay v. Bowen (9th Cir. 2014). Both of these are presidential election cases–that is, the power of the states to adjudicate qualifications of presidential candidates consistent with their Article II power.

The district court wrote, “Nevertheless, both the Hassan and Lindsay courts emphasized that, under Article 1, Section 4, states have a significant interest in protecting the legitimacy and functioning of the political process of elections.” This is simply false. Neither case cites Article I. And why would it? It has nothing to do with state power under the Elections Clause, which extends to congressional elections.

As I point out in my scholarship on the subject, it’s pretty clear that the state’s power to “direct” the”manner” of appointing electors under Article II is broader than its “manner” power under Article I. For one, it’s not constrained by a separate limitation of Congress, “Each House shall be the judge of the elections, returns and qualifications of its own members . . . .” For another, the Court’s decision in Chiafalo v. Washington helps confirm the breadth of this power. One cannot read Chiafalo (approving the power of states to authoritatively bind the actions of presidential decisions) and think it would survive scrutiny from the Court’s decisions in congressional cases like Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton.

To be fair, the challengers have consistently conflated these Article II cases with the Article I power, so it’s not surprising to see a district court confused. And it’s possible to spend some time construing what this clause does, perhaps in conjunction with the Tenth Amendment (which U.S. Term Limits rejects, but, I think, would be essential for the challengers to raise to succeed, even if I think that’s the wrong argument on the merits).

Relatedly, the district court has no authority to cite for the proposition that the state’s power extends to adjudication of qualifications. Instead, it moves from generic Article I cases citing states’ power into Article II cases about presidential elections. Consider:

. . . Historically, the states’ authority to regulate the “Times, Places, and Manner” of elections under their Article I, Section 4 authority has been interpreted broadly. In Roudebush v. Hartke, the Supreme Court reasserted the “bredth” of the states’ powers under Article I, Section 4, explaining that the “comprehensive words” embraced in that Section provide a “complete code for congressional elections.” 405 U.S. 15, 24 (1972). The Roudebush Court further explained that this authority extends:

“not only as to times and places, but in relation to notices, registration, supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.

Id. at 24–25 (finding that Indiana’s recount procedures did not usurp power that only the Senate could exercise, where recount did not prevent Senate from independently evaluating the election, and also noting that the Senate was free to accept or reject the apparent winner or conduct its own recount) (citing Smiley v. Holm, 285 U.S. 355, 366 (1932)).

Consistent with this broad power, federal appellate courts have held that states have the power to exclude from the ballot constitutionally unqualified or ineligible candidates. In Hassan v. Colorado, then-judge Gorsuch wrote for the Tenth Circuit, holding that Colorado had a legitimate interest in excluding the plaintiff from the ballot because he was constitutionally prohibited from assuming the office of President of the United States under Article II because he was a naturalized citizen rather than a “natural born Citizen.” . . .

There’s no case out there on congressional candidates because it doesn’t exist.

And finally on this topic, the district court confuses the state’s interest with its power. It notes, “As noted, such a result [states lacking the power] is at odds with the decisions in Hassan and Lindsay, which recognized states’ interests in protecting the legitimacy of the political and election process.” A state may well have an interest, but it may well exceed the state’s power.

Third an apparently lack of briefing left disappointing conclusions. For instance, “In this case, Plaintiff has pointed to no authority holding that a state is barred from evaluating whether a candidate meets the constitutional requirements for office or enforcing such requirements. Indeed, as each house of Congress may only act to judge the ‘Elections, Returns and Qualifications of its own Members,’ U.S. Const. Art. I § 5, cl. 1 (emphasis added), it is also not clear that the current 117th Congress would be permitted to assess the qualifications of a candidate, like Plaintiff, for the 118th Congress. If this is so, under Plaintiff’s theory, neither the State nor Congress would be permitted to exclude a constitutionally unqualified candidate from the ballot before the election.”

This is confusing for a couple of reasons. My work has cited plenty of cases, including Morgan v. United States (D.C. Cir. 1987) and State ex rel. Chavez v. Evans (N.M. 1968), for the proposition that no one but Congress gets to adjudicate qualifications.

And why is it relevant that the 117th Congress cannot exclude Greene from the ballot? First, Congress today could exclude her for failing to meet the requisite qualifications. (One might ask, why it hasn’t, or why challengers haven’t pursued that channel.) Second, Congress cannot bind a future Congress. The117th Congress cannot adjudicate the qualifications of members of the 118th Congress. In fact, if one believes that the Article I, Section 4 “manner” includes this pre-election power to adjudicate qualifications, and if Congress purported to exercises its power under that clause, we’d have a major, separate problem of one Congress usurping the power of another Congress.

Nevertheless, there’s some small mercy at the end of the opinion: “The parties devoted little time and few pages to the complicated questions inspired by this novel situation. Given the preliminary stage of the proceedings, the difficulty of the legal questions posed, and Plaintiff’s failure to cite persuasive legal authority or even include a developed legal argument that the State of Georgia lacks the authority to enforce an existing constitutional provision, Plaintiff has not established a likelihood of success on the merits on Count III.”

It’s my hope that this gets cleared up on subsequent or appellate review (although there’s a good chance Greene wins her administrative hearing or loses her primary, which would likely moot future review), because the Article I arguments here have some significant flaws.

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