Rick H. links to a forthcoming article by Professors Michael Stokes Paulsen and Will Baude on Section 3 of the Fourteenth Amendment, and specifically the application of that section to former president Donald Trump. I am sure the paper will generate significant attention, praise, skepticism, and criticism in the weeks ahead.
But I wanted to focus on one small (but important!) piece, the ballot access issue, which I’ve written about extensively over the years–these are my own views that try to synthesize the Constitution’s text and structure with a long liquidated practices of the states. In short, states do hold the power to judge the qualifications of presidential candidates and may exclude ineligible candidates from the ballot. But they need not do so, and it is up to the legislature in each state to decide whether to implement rules to adjudicate qualifications. (And for a refresher of the path that such litigation might take, I recommend my November 2022 blog post on this topic, which has aged, so far, fairly well. And for a more succinct version of this, check out Ned’s important Washington Post piece that went up today.)
[1] To begin briefly, I’ve been a vociferous advocate of the (lonely!) theory that states have no power to adjudicate the qualifications for congressional candidates. This is a combination of a construction of a handful of provisions of the Constitution, including: (a) the Judge of Elections Clause, which gives Congress the power to be “the judge” (emphasis added) of qualifications; (b) the Appointment of Representatives Clause, which gives “the people” the power to choose representatives, and (c) the fact that the “manner of holding elections” clause includes the power to develop procedural mechanisms for holding elections, but no power to adjudicate qualifications.
[2] That said, I have argued that states do have the power to adjudicate the qualifications of presidential candidates.
(a) There is no Judge of Elections Clause for presidential elections, which means there is no textually demonstrable commitment to a federal body to adjudicate qualifications of presidential candidates.
(b) The “legislature” of each “state” may “direct” the “manner” of appointing presidential electors–it is not a matter reserved exclusively to “the people.”
(c) State legislatures hold the power to “direct” the “manner” of “appoint[ing]” presidential electors, a power different than the power to regulate the “manner of holding elections”–and while both have the word “manner,” the word embraces more in the context of “appoint[ing]” rather than “holding elections.”
[i] For instance, states may add qualifications to presidential electors, such as requiring electors come from each congressional district or that electors may not hold a state office, qualifications common of electors across the United States.
[ii] States may require electors to take a pledge to vote for a president and a vice president. (Ray v. Blair)
[iii] States may strip electors of their office or fine them for disobeying that pledge. (Chiafalo v. Washington, Colorado Department of State v. Baca)
[iv] States may replace electors after Election Day. Indeed, states allow electors to choose replacements in their body when a vacancy arises.
[v] States may require electors to be chosen at large as a single bloc of electors and prohibit voters from choosing among individual electors. States need not even print the the names of electors on the ballot.
In all of these ways, the power to direct the manner of appointment of electors is a broader state power than over congressional elections–it is hard to imagine analogous laws applying in congressional elections.
Relatedly, states have the authority to review the qualifications of presidential candidates and ensure that the state’s electoral votes are not wasted. The legislature has an interest in ensuring that electoral votes are only given to qualified candidates.
Think of it this way. The state legislature wants to ensure that the state is represented in the selection of the president and vice president. If the state’s electoral votes are later discarded in Congress (think Congress discarding votes for the deceased Horace Greeley in 1873), the state really has no opportunity to participate effectively in the Electoral College.
This is different from congressional elections, in my judgment. Congressional elections are about the people’s unfettered choice. If the people choose to elect a candidate who is not qualified to hold office–and they have repeatedly done so in the past, with candidates of questionable age or inhabitancy qualifications–it is on the people to do so, and on Congress to decide whether to seat. And if there is a vacancy, the people have another choice to fill the seat, albeit with a vacancy that exists for some time. There is no such analogous direct interest of the people in presidential elections, as the Electoral College is designedly created of representation from the states, and from rules promulgated by the legislature. (This is a contentious proposition, to be sure, but I think is the best way of addressing the differences between the two.)
(d) Now, this means states have judged the qualifications of candidates to exclude them from the ballot. Most of the challenges we think about in recent years–Barack Obama and Ted Cruz attracted the bulk of litigation–were unsuccessful. But others have been successful.
In some states, you can see “stand-ins” for ineligible candidates (but formally minor party nominees) like Roger Calero or Arrin Hawkins, whose names have been excluded from the ballot in some states. The Ninth Circuit affirmed the exclusion of Peta Lindsay from the California ballot for being ineligible. In an unpublished opinion by then-Judge Neil Gorsuch, the Tenth Circuit approved Colorado’s requirement that a candidate attest under penalty of perjury that he met age, citizenship, and residency requirements for president–a non-natural born citizen had no right to appear on the ballot in that case. (Colorado has since repealed this requirement.) I’ve chronicled other, older examples tracing back at least to the 1960s in my scholarship.
[3] But states do not have an affirmative duty or obligation to investigate the qualifications of presidential candidates and prevent ineligible candidates from appearing on the ballot. Here, I think the statements from Professor Steven Calabresi are incorrect, and, I think, a gap between what Professors Paulsen and Baude suggest. As summarized by the New York Times:
“Section 3’s disqualification rule may and must be followed — applied, honored, obeyed, enforced, carried out — by anyone whose job it is to figure out whether someone is legally qualified to office,” the authors wrote. That includes election administrators, the article said.
Professor Calabresi said those administrators must act. “Trump is ineligible to be on the ballot, and each of the 50 state secretaries of state has an obligation to print ballots without his name on them,” he said, adding that they may be sued for refusing to do so.
If the state legislature has empowered state election officials to adjudicate the qualifications of presidential candidates, then state election officials may do so. But if the state legislature has not, then state election officials have no such power–and no such duty.
(a) I’ll begin with some history. After the arrival of the Australian ballot in the late nineteenth century, states could determine which electors’ names would appear on the ballot, and if a presidential candidate’s name would appear on the ballot, too. States then began to simplify that process (see (2)(c)(v) above) by listing only the presidential candidate’s name.
I can point you to a host of ineligible candidates who appeared on the ballot, mostly underage candidates. James B. Cranfill, for instance, was the 33-year-old vice presidential candidate for the Prohibition Party in 1892. Eldridge Cleaver in 1968 was the Peace and Freedom Party’s presidential candidate in 1968, also just 33. The list goes on: Michael Zagarell, Linda Jenness, Andrew Pulley, Larry Holmes, Gloria La Riva, Róger Calero, Arrin Hawkins, and Peta Lindsay have all appeared on the ballots of at least some states, into the twenty-first century, despite being underage or not a natural born citizen. (Now, to be clear, in all of these cases, states have excluded ineligible candidates where there is no factual or legal doubt about their ineligibility. A 27-year-old or a Nicaraguan national are not eligible to be president.)
Now, not all of these candidates were successful everywhere. Eldridge Cleaver, for instance, was excluded from the ballot in some states (and sued to get on, and lost), but appeared in others. This is the nature of the Electoral College–state-specific decisions about whether ineligible candidates ought to appear on the ballot.
In short, over the years, one can easily and readily find ineligible candidates who appear on the ballot. If state legislatures have not created rules to exclude ineligible candidates, then those candidates may appear on the ballot (assuming they have met other conditions for ballot access). It might well be that states do not think this game is worth the candle–that is, they assume the likelihood of ineligible candidates appearing on the ballot, or winning an election, is quite low, so why create complicated mechanics to adjudicate eligibility? (Not all states think this way, and of course some have avowedly come out the other way!)
(b) One response might be that state officials take an oath to uphold the Constitution, and that means they have an independent obligation to enforce the qualifications of presidential candidates. But that proves too much. For one, while the Legislature Thereof Clauses of the Constitution have been the subject of some serious discussion these last few years, one is hard pressed to find even the most ardent skeptic of the Legislature Thereof Clauses to suggest that a state election official can act without any authorization, express or implied, of the state legislature, state law, or state constitution to administer federal elections. It is simply a matter of departmentalism–some tasks are parceled out to different federal or state actors under our constitutional system.
The only one I’ve ever seen (pre-2020) to advocate such an expansive view of state election official power in presidential elections was Justice Roy Moore on the Alabama Supreme Court. As I wrote in 2014 (with some light revisions), summarizing his views of the case:
Perhaps the most potent judicial argument against this conclusion arose in Justice Roy Moore’s dissent in an Alabama Supreme Court case handling a “birther” lawsuit. McInnish v. Bennett, No. 1120465, 2014 WL 1098246 (Ala. Mar. 21, 2014) (Moore, J., dissenting). He argued that independent of any state statute, the state election administrator had an obligation to investigate the qualifications of presidential candidates. He melded the Supremacy Clause, U.S. CONST. art. VI, cl. 2, with the Oaths Clause, id. art. VI, cl. 3, to find a duty for executive officers to enforce the Qualifications Clauses. McInnish, 2014 WL 1098246, at *23. This argument is a troubling non sequitur. Taking the oath to uphold the Constitution does not indicate who is tasked with the duty of enforcing each provision. Some tasks are delegated to the states, others to the federal government, and some to different branches of government. Simply because the state officials take an oath to uphold the Constitution does not mean that they have “the duty to enforce the qualifications clause.” While Justice Moore “would not prescribe the manner” of verifying eligibility, the duty still, in his view, remained in the elections administrator.
As discussed, the power to review qualifications already resides with the voters, the presidential electors, and Congress. And it may reside in a state official, if the state legislature so directs. But it is not a duty inherent in the office of an election administrator to investigate qualifications. Indeed, to do so might usurp the power of the state legislature to select the manner of appointment.
The notion that state election officials should be asking for the birth certificates of presidential candidates or holding hearings about the circumstances of their birth, without any authorization from the legislature or a statutorily-created process for investigation, would be significant. It’s a reason to be skeptical of claims that any state election official can investigate qualifications, as the consequences do sweep far more broadly than the Section 3 issues relating to former President Trump.
(c) Relatedly, I have suggested that state election officials and courts should construe their jurisdiction narrowly for precisely these reasons. Before entering a political thicket, these tribunals should tread cautiously. These can be hot-button and contentious cases decided on an extremely compressed time frame in front of officials whose job is typically pro forma, or who may be tasked with verifying the number of signatures or the completeness of ballot access petitions.
But admittedly, state officials and courts have routinely exercised jurisdiction in any cases–including over federal qualifications–where state tribunals plausibly have the power to review challenges to candidacies.
That said, state officials have often publicly lamented that they have been given this authority. They feel entirely ill-equipped to make complicated and nuanced determinations of federal law on qualifications. Here’s how I summarized some of the laments about 2016 controversies involving Ted Cruz:
When election administrators heard these eligibility challenges, they often asserted jurisdiction. But they also frequently expressed reluctance that they should be the ones who handled such disputes. They preferred that a court—perhaps a federal court, or the Supreme Court—would hear the challenge. For example, a commissioner in New York lamented, “[T]his type of heavy decision should really be made in a federal court.” Another chimed in, “I agree with you that it’s an important issue that ought to be resolved in the courts.” An Indiana commissioner complained, “I wish that there was a way that we could transfer this directly to the Supreme Court and let them rule.” After permitting Cruz to appear on the ballot, the New Hampshire BLC concluded parenthetically: “[T]he appropriate raising in and deciding of this question by a court equipped to decide such Constitutional matters, so that all election officials and the American people know once and for all the definition of ‘natural born citizen,’ would be helpful in avoiding uncertainty.”
The election officials seemed to be at a loss in deciding how to handle the uncertainty before them. The term “natural born citizen” remained the subject of some dispute. An Indiana commissioner thought that they should err on the side of permitting the candidate on the ballot. The New Hampshire BLC concluded that Cruz’s petition did not contain an “obvious” defect. These are hardly sure statements of Cruz’s eligibility.
(d) One problem, of course, in adjudicating non-obvious cases of ineligibility is timing. Qualifications challenges are not ripe until a candidate has filed paperwork–a candidate, after all, may die or back out of running. And ballot deadlines are usually fairly close in time to when ballots are printed–if a state spreads that time out too far, they may run afoul of the Anderson-Burdick test, and as a practical matter states do not want to force candidates to file too far in advance of an election. Adjudication, then, must take place in a narrow time frame, between the filing of candidacy and the printing of ballots.
States do routinely hear challenges to eligibility in this window, of course. Most common are challenges to the sufficiency of candidate petitions–whether there have been enough genuine signatures from eligible voters with appropriate paperwork. And it’s not uncommon to see administrative tribunals and subsequent judicial review–even multiple layers of it–on some contested questions. (I follow an administrative tribunal hearing and two layers of judicial review in Iowa in the Spring of 2022 in an expedited timeline as questions arose over a Senate candidate’s ballot petitions, to name one such recent example.) While it may not be desirable, it is certainly possible.
(4) So, a couple of criticisms may pop up.
The first is political–even if states technically have this power, should they use it? My sense, and it is only my sense, consistent with some of my writings over the last decade, is that while states can do this, they should use the authority carefully and sparingly, particularly where legal or factual disputes arise. But others can, I think, understandably reach different conclusions. (And when they do engage in that power, states should ensure sufficient procedures and time to adjudicate those disputes.)
Second, is this really what our presidential elections permit? Frankly, this is part of the design of the Electoral College. Fifty-one different jurisdictions are preparing to run their elections in fifty-one different ways with fifty-one different sets of rules for who appears on the ballot. (One might even call it “Fifty-One Imperfect Solutions.”)
There are praises (in some circles) about our decentralized system–how it requires broad geographic support for a presidential candidate to win, how it can isolate instances of fraud to a particular state, and so on. And, of course, criticisms (in some circles) about how it is an antiquated relic from an era with a small enfranchised population with limited awareness of national political figures, and is now contrary to contemporary notions of democratic self-governance.
I do not have easy answers except to note that if we have a deeply decentralized (and complicated) presidential election system, we should not be surprised to see deeply decentralized (and complicated) mechanics to address the most contentious questions ahead of a presidential election.
There will be much more to be said in the weeks ahead. And this post doesn’t get into the merits of any of the legal or factual issues surrounding Section 3 (e.g., whether it is self-executing, etc.) or as applied to former President Trump. It just carves out this narrow slice of the power of states to review the qualifications of presidential candidates more generally.
(For more, including the source for some block quotations above, see my articles: Scrutinizing Federal Electoral Qualifications; ‘Natural Born’ Disputes in the 2016 Presidential Election; and Weaponizing the Ballot.)