What the litigation path of eligibility challenges to Donald Trump may look like

If I had a crystal ball into the future of litigation surrounding Donald Trump’s candidacy for the Republican presidential nomination, I would project something like this: In January 2024, administrative tribunals in Illinois and New Hampshire will issue the first decisions on the merits examining whether Trump is eligible to appear on the ballot for the presidential primaries. That will be the first merits decision in a torrent of litigation with an unknown future.

I’ve exhaustively followed presidential qualifications challenges in recent years (including a string of 2016 challenges), and I hope to offer at least a modestly informed take of where things might go. This post is a short-ish walk through what that might look like (with no examination on the merits, only the election qualification litigation process). Of course, others may sue (or attempt to sue) earlier, and there are other avenues where the litigation may lead, but this is the most likely way forward.

It’s best to think of four separate stages of a presidential candidacy: running for office, appearing on the ballot for the presidential preference primary, appearing on the ballot for the general election, and the votes of presidential electors. And for any challenge (not so subtly presaged by many, many left-of-center attorneys out there) to Trump’s candidacy, the timing and context matters.

First, anyone, eligible or not, can run for federal office. Avowedly unqualified candidates must comply with federal campaign regulations, but they are not barred from fundraising or campaigning. In the lengthy presidential campaign season, this will inevitably last for many months before the earliest presidential primaries. The Federal Election Commission, however, has concluded that eligibility is not a condition for running for presidential office. (That said, the FEC did note that it was limited in how it approached this question: “Notwithstanding this conclusion, the Commission expresses no opinion on Mr. Hassan’s potential liability arising out of his proposed activities under any other Federal or State law, including any laws concerning fraudulent misrepresentation. Any such issues are outside the Commission’s jurisdiction.” One wonders how these may proceed.)

There may be some challenges filed in this stage, but I think (subject to the caveat above) they are unlikely to go anywhere close to the merits.

Second, filing to appear on the ballot in the presidential primaries. There is a layer of complexity here. Formally, states are choosing delegates to send to the nominating convention, and those delegates are pledged to support a particular presidential candidate. Most states hold primaries, but a few have caucuses or nominating conventions. That said, many “natural born citizen”-style disputes in recent years have not distinguished between primary and general election candidacies and found this stage appropriate to handle the merits of such a claim.

States will have signature-gathering opportunities that begin later in 2023, and the earliest state deadlines to file those signatures (or meet other applicable deadlines) start in November. Some of the earliest natural born-citizen claims I’ve found adjudicated in recent years came in January in Illinois and New Hampshire some cycles ago. It’s the reason I put this as the most likely locations to reach decisions first. (Admittedly, this is a guess.)

These cases often begin in either a state administrative tribunal (that’s how recent challenges in Illinois and New Hampshire, along with Indiana, began) or in a state court. It is worth noting these crop up in individual states on an ad hoc basis. Some allow any eligible voter to bring a challenge. Others may require it to be an opposing candidate who would have the standing to challenge. Some states only require candidates assert eligibility under three principal qualifications (age, residency, natural born citizenship status), while others speak more generally about being “qualified.” Most state tribunals have construed their jurisdiction broadly to suggest that they do have the authority to adjudicate qualifications. (I’ve argued courts should be reluctant to construe their jurisdiction here too broadly.)

Importantly, as I blogged a year ago, this is a piecemeal, ad hoc process. (Ned Foley had thoughts here, too.) Some states even permit ineligible candidates to appear on the ballot. Importantly, states have no obligation to exclude an ineligible candidate (or a purportedly ineligible candidate) from the ballot. They have included avowedly ineligible candidates all the time, including, in recent years, non-citizen Roger Calero and underage citizen Peta Lindsay as a presidential candidates. But, some do, and some will so require.

It’s not clear how this process plays out. It’ll certainly be truncated (the amount of time between a nomination paper filing deadlines and the printing of ballots is usually pretty tight), scattershot, and uncertain. Often, the initial review is not in front of a judge, but a single administrator or panel of an election board, with rather opaque evidentiary requirements. It’s possible that the only way this is resolved on an effectively-national level is (1) some state supreme court excluding the candidate after rapid review through the state administrative and judicial process, and (2) the United States Supreme Court granting cert to review the lawfulness of that exclusion.

Third, filing to appear on the ballot in the general election. These often aren’t distinguished, but it’s possible the formal complexity of presidential primaries could gum up the works, and the process could be delayed in some places, but I’ll assume that’s not much of separate barrier at this stage–I assume (perhaps incorrectly) that resolution in the primaries would resolve it for the general.

Fourth, serving in office. It’s entirely possible that Congress chooses to exercise its powers under the Counting Clause of the Twelfth Amendment to refuse to count votes cast for a candidate it deems “ineligible.” That is, of course, a suboptimal solution–waiting until January 6, 2025 and the uncertainty and havoc that could bring.

In short… there are several stages where such challenges could occur, with varying degrees of likelihood of success in even getting to the merits. But, it is my assumption (of course, sure to be wrong!) that there will be nothing close to a merits determination by any tribunal anywhere until, perhaps, January 2024, after nominating papers have been filed for the earliest primary states. There’s more I’ll have to say on an additional layer of complexity that these types of legal challenges may bring, but that’s for another blog post….

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