As part of raising a question about the timing of potential lawsuits to bar Trump from the ballot on section 3 grounds, I’m reminded of Derek’s very comprehensive and helpful ELB post mapping out the litigation possibilities on this topic. Among other points Derek makes is this:

“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.“

Reading this, and again without having done any independent research of my own on this specific point, I’m still left wondering why litigation of this issue must be timed in a way to be so contrary to the public’s overwhelming public interest in settling this constitutional question sooner rather than later. Indeed, although the Purcell principle was developed in the context of a different topic, the same basic point about the need to avoid last-minute litigation that destabilizes the electoral process applies to the section 3 issue with extra force given what’s at stake. The first primary debate between Republican candidates is scheduled for August 23. Whether or not Trump shows up, the operating assumption of all involved is that he’s an eligible candidate. Indeed, CNN has already hosted its infamous town hall with Trump on the assumption that Trump is an eligible candidate to run for reelection.

The more water that flows under the bridge in this presidential primary campaign season, the more the equities weigh against judicial intervention to remove Trump from the race–unless of course Congress enacts a special statute that mandates judicial adjudication of the issue on a congressional specified timetable.

I would have thought it should be possible for plaintiffs, if they are entitled to bring this kind of claim at all, to file at least a declaratory judgment action now (and perhaps also their request for injunctive relief) to get the judicial decree–assuming they can win on the merits–that section 3 of the Fourteenth Amendment bars Trump from serving as president again and therefore he cannot be a candidate for that office. If a court were to reject the claim as premature on ripeness grounds, at least the plaintiffs would have tried to time their lawsuit most consistently with the public interest at stake, and presumably then the lawsuit could be filed again at a later date consistent with the court’s ripeness doctrine ruling. But if I were a judge in the case, I would be thinking about the issue with Purcell in mind and reading the relevant precedents with the view of seeing whether they permitted the case to go forward sooner rather than later.