In response to my recent musings about the possibility of a congressional compromise statute that would create special expedited civil litigation to adjudicate Trump’s status under section 3 of the Fourteenth Amendment, several readers have pointed to the planned lawsuits that will be filed even without this kind of statute seeking to bar Trump from appearing on the ballot because of section 3.

I’ve been skeptical that these lawsuits can be successful without the enactment of a new congressional statute authorizing courts to adjudicate Trump’s section 3 status, but I want to set aside that skepticism for now (noting the existence of this report on the issue).

Instead, I want to focus on the timing of these lawsuits. I haven’t researched this procedural question, but it seems clear to me that it is overwhelmingly in the public interest to have this section 3 question litigated definitively one way or the other as soon as possible. As we all know, the public campaign for the Republican primary is already well under way as a practical matter, and the media is constantly treating Trump as an eligible candidate. The media’s doing so is entirely understandable, because there has been no ruling to the contrary. Indeed the only relevant ruling is Trump’s acquittal in his second impeachment case, which was a rejection of an attack on his eligibility (albeit arguably for the technical reason that he was no longer in office, as articulated by Senator Mitch McConnell among others). Consequently, the voting public is becoming reliant upon the expectation that he’s an eligible candidate entitled to run again for the presidency.

Insofar as the relevant procedural question on the timing of these lawsuits is governed by the law of equity, I would think that equitable factors–which give considerable weight to the relevant public interest involved–weigh heavily in favor of permitting, or even requiring, this kind of lawsuit to be filed now rather than later.

Thus, I was surprised by this sentence in the Washington Post’s story on these planned lawsuits: “The Section 3 challenges cannot be filed until Trump applies for or is granted ballot access late this year, attorneys say, giving the courts just a matter of months to decide on the merits of the claim before votes are cast in the nomination fight.”

Again, I haven’t researched the specific question and thus haven’t looked at whatever statutes and/or judicial precedents might be relevant. But from a common sense perspective, this seems bizarre. Trump is clearly and undeniably a candidate; he announced his candidacy long ago now. If it’s possible to litigate whether his candidacy is consistent with section 3 of the Fourteenth Amendment without the enactment of a new congressional statute, that litigation ought to be happening now, and not waiting many more months from now.