“One state can make the Supreme Court decide if Trump can be president”

My opinion column in the Washington Post, which addresses potential litigation over Trump’s disqualification under section 3 of the Fourteenth Amendment, especially in light of the new Baude-Paulsen law review article; some excerpts:

“None of the criminal prosecutions of Donald Trump, even if he is convicted, can constitutionally stop him from running in — and winning — next year’s election.

“But there’s a serious argument that, separate from any criminal charges, Trump is constitutionally disqualified from returning to the White House because of his role in the Jan. 6, 2021, insurrection at the Capitol. …

“The Supreme Court has not ruled on these issues. The 2024 campaign is underway with Trump far ahead in national polls of Republican voters and, in polls of all registered voters, running even against President Biden in a potential general-election matchup. For the sake of the nation’s system of self-government, the Supreme Court must settle the question of whether Trump constitutionally can be president again — before the Republican convention is held next July. …

“What would be disastrous for democracy would be for Trump to appear on the November 2024 ballot as the Republican nominee, then to win the election, and afterward be disqualified and denied a second term. Yet that could happen if, without a Supreme Court ruling before the GOP convention, Congress were to decide for itself that Trump was disqualified and so it must nullify the will of the voters when it convenes to count the electoral college votes in January 2025.

“How then to get the case properly before the Supreme Court in time?

“Lawsuits on behalf of voters are already being planned, but for technical reasons concerning the jurisdictions of courts, it would be preferable if a state election official, such as a secretary of state, made a preliminary administrative ruling of Trump’s constitutional ineligibility and then sought judicial confirmation of this determination in state court. Consistent with due process, Trump — and voters who want him on the ballot — would be entitled to challenge this administrative decision in court. Whichever way the state court ruled could be appealed all the way to the Supreme Court, whose decision would be binding on all the states.

“So far, so good. But there’s one important wrinkle. State law needs to permit election officials to make this kind of decision. If a state statute has not already authorized administrative officers to seek disqualification of presidential candidates, then — as the Supreme Court signaled this year — it might be a usurpation of the state legislature’s prerogative to determine the “manner” of conducting presidential elections for these officials to assert this power on their own.

“Consequently, the safest course is for a state legislature to clarify, by enacting a new statute as soon as possible, that its election officials have the power to remove insurrectionists from the presidential ballot. A new statute could create an expedited timetable to ensure that the case reaches the Supreme Court in time for a decision before the Republican convention in July.”

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