Do Voters Have a “Right” that Trump Be on the Ballot?

Since writing my Washington Post column on procedural issues relating to whether or not Trump is constitutionally disqualified from serving as a president again under section 3 of the Fourteenth Amendment, I have been asked by some journalists a version of this question: even if the correct constitutional interpretation is that Trump is disqualified, isn’t it too politically dangerous to enforce this disqualification because of the anger it will provoke among Trump’s most ardent supporters, who amount to a sizeable percentage of the Republican primary electorate? 

My main response to this question is to say: if Trump is on the ballot, then if he wins he must be permitted to take office (because otherwise it would be unfair to the voters); and if one believes that Trump is constitutionally disqualified from taking office even if he wins, then it’s necessary that he not be on the November 2024 ballot—so that voters have the opportunity to choose between eligible candidates. 

Here is one more point relevant to the strong desire of many Republican primary voters to be able to vote for Trump in the primaries: in our electoral system, there is no “right” belonging to voters to have their preferred candidate be eligible to participate in a political party’s primary. The political party itself, given its First Amendment rights, can disqualify individuals from being its nominee and thus preclude individuals from being eligible to run in a primary that forms the basis for determining the party’s nominee. I don’t want to review in this blog post the details on previous litigation over this point, involving would-be candidates like David Duke, but I believe the basic principle is clear.

Thus, the Republican Party could render Trump ineligible for its nomination without regard to the issue of constitutional disqualification under section 3 of the Fourteenth Amendment. Obviously, the Republican Party has not done that. Nonetheless, it remains true as a matter of law that voters in the party’s primary are at the “mercy” of the party’s own rules and decisions concerning its nominating process. This includes the degree to which the party wishes to make the results of the primaries binding on the delegates at its convention—on first ballot only, etc.—as well as the degree to which the party does or does not want to add “superdelegates” and the like as an additional input into the nominating process. 

Assuming that Trump remains on the ballot for much (and maybe even all) of the primaries next year, it doesn’t follow that the Republican convention is necessarily bound by the results of those primaries when it meets in its convention next July. If in the intervening period between the primaries and the conventions there is (hypothetically) a definitive ruling from the U.S. Supreme Court that Trump is constitutionally disqualified from being president again by virtue of section 3 of the Fourteenth Amendment, the convention of necessity will be required to deliberate what to do in light of the Court’s ruling (just as it would of necessity be required to deliberate if Trump had died or had a severe stroke or otherwise become physically incapacitated to serve as president). 

Obviously, that would put the convention in a difficult situation, especially assuming that the voters in the primaries had expressed an overwhelming desire to have Trump as their nominee—and the party had planned on using those primaries as the basis for choosing its nominee. Nonetheless, unlike in the general election, where the vote dictates the outcome, in the context of the primary the vote is contingent on the party’s use of that vote in its own nomination decision. 

Thus, I think it is a mistake to think of voters having a right to vote for a particular candidate in a party primary, or to have a right that the party nominate their own preferred candidate.  I recognize that culturally or sociologically voters make have come to have a sense that they possess this “right” because of the way that primary elections have developed—and becoming dominant—in the nominating process. But I think one important role that the media can play over the coming months, which will inevitably be fraught given Trump’s pending criminal trials and anticipated litigation over his status under section 3 of the Fourteenth Amendment (however that plays out), is to explain as best as possible to the public the nature of the primary system and how the party ultimately decides its nominee. The party may give voters a significant role in the nominating process, but it is not a matter of the voter’s right—the relevant right under the First Amendment belongs to the party.

The issue would become more complicated if a political party attempted to insist upon nominating a candidate that the U.S. Supreme Court (hypothetically again) already adjudicated to be ineligible to serve. Can a party demand that the state put an ineligible candidate on the November general election ballot as its presidential nominee? Suppose, for example, the Democratic Party insisted upon nominating Barack Obama again (instead of Joe Biden) as the Democrat best position to defeat Trump in the upcoming election. Obama is obviously constitutionally disqualified because of the two-term limit. That’s a straightforward case, whereas Trump’s status under section 3 of the Fourteenth Amendment is not. But the First Amendment issue is the same, as far as I can tell. And I think the answer is no: a party does not have a First Amendment right that the state’s November election ballot include a candidate who is disqualified, either because the disqualification is obvious or because the Supreme Court has so ruled. 

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