Ned and Rick H. have done an impressive job collecting some of the commentary over the last couple of weeks of challenges being filed, or anticipated to be filed, about Donald Trump and his eligibility under Section 3 of the Fourteenth Amendment. Before arriving at the merits of any Section 3 argument, however, there are plenty of hurdles challengers must clear. Right now, those challenges are likely doomed to fail for any number of reasons.

It’s worth opening with a brief observation. Challenges to presidential candidates’ eligibility are not new. There were extensive challenges to Barack Obama and Ted Cruz (among others) in administrative tribunals and courts. Most of these challenges never reached the merits stage of whether the candidate was a “natural born citizen” because they failed to clear some other hurdle.

The bulk of challenges right now are doing exactly the same thing and making the same mistakes, or are on pace to do the same.

(1) Ned highlights a lawsuit by Lawrence Caplan against Trump in federal court in Florida. This case, like many of the others already pending and about to be filed, will surely fail. Already in Florida, one case has been tossed out and is on appeal before the 11th Circuit (Castro v. Trump), the grounds being lack of standing and ripeness issues. The paradigmatic “generalized grievance” is a voter who shares an injury with all other prospective voters–and there is no Article III jurisdiction over the case (setting aside separate issues about whether a declaratory judgment is available to “declare the rights and other legal relations of any interested party” here). Another (Stilley v. Trump) is pending in Arkansas. A congressional candidate in New Hampshire is considering a similar path.

These cases are following a very obvious pattern of failed “birther” challenges to Barack Obama’s or Ted Cruz‘s eligibility–recall, these are failures before even reaching the factual or legal merits of the case. (It is not clear whether sanctions will arise in at least some of these cases that continue to repeat claims foreclosed by extensive precedent.)

(2) Many states have no legal mechanism to review qualifications, as my earlier post on this topic shows. Ineligible presidential candidates have appeared on the ballot for decades in many states. And the processes available vary from state to state in how they might look. Let me highlight just four examples, and some of the strategy happening right now (as some media has mentioned “letters” being sent to or inquiries made of Secretaries of State.

(a) Let’s open with Arizona. Many of the most vocal advocates of Section 3 disqualification also tried to bring challenges to candidates in Arizona in 2022. That strategy resulted in a materially adverse legal precedent from the unanimous Arizona Supreme Court closing the door on qualifications challenges under the mechanism made available to challenge election candidates. From the Arizona Supreme Court’s decision in Hansen v. Finchem:

. . . we hold that A.R.S. § 16-351(B), which authorizes an elector to challenge a candidate “for any reason relating to qualifications for the office sought as prescribed by law, including age, residency, professional requirements or failure to fully pay fines . . . ,” is not the proper proceeding to initiate a Disqualification Clause challenge. By its terms, the statute’s scope is limited to challenges based upon “qualifications . . . as prescribed by law,” and does not include the Disqualification Clause, a legal proscription from holding office.

It’s possible there’s some other mechanism in Arizona challengers missed the last time around. (Perhaps this is why Secretary of State Adrien Fontes remains opaque.) But this ruling makes the ordinary qualifications review process in Arizona effectively closed to challengers.

(b) When states do have a mechanism to review, it is often a very low threshold meant to target “obviously” unconstitutional candidates. For instance, here’s what then-Deputy Secretary of State David Scanlan of New Hampshire had to say in 2016 (he’s now the Secretary of State):

Deputy Secretary of State David Scanlon [sic] said his office generally takes the candidate’s word when a declaration of candidacy is submitted. “We take the declaration of candidacy at face value absent of any information that the information provided on the form is false or grossly inaccurate,” he said.

This is how New Hampshire excluded Democratic candidate Sal Mohamed (who was not a natural-born citizen) in 2008 from its primary ballot, but opted to include Barack Obama and Ted Cruz in later elections (finding challenges deficient). The Ballot Law Commission in New Hampshire holds the power to review the initial determination of the Secretary of State, but it is one quite deferential. Here’s how it styled its own power in 2011 with regard to Obama (and repeated in 2015 with regard to Cruz):

As counsel advised the Commission at its hearing, the jurisdiction of the New Hampshire Ballot Law Commission is limited to that afforded it by the legislature in its enabling legislation. That does not include investigation of asserted criminal activity, conspiracy or other matters. The Commission has no staff, no budget and receives no compensation for the service members provide the state. Even if there were facts asserted which deserve investigation, those allegations should be investigated by federal law enforcement or election officials. Absent an obvious defect in a filing for office (such as residency in a district different from that in which a candidate has filed, etc.), the Commission is limited to a review of the sufficiency of the filing of a candidate. After such review, and absent such a showing, there is absolutely no basis to reject President Obama’ s declaration of candidacy or to deny him a place on the 2012 Presidential Primary Ballot.

Now, this is a state where it’s entirely possible to bring a challenge to a candidate’s qualifications. But to succeed seems like a tall order, given the standard of review as promulgated over the last decade or so (absent some shift in interpretation or application of the law). (It’s also not clear, based on a decision from the Ballot Law Commission last year, it even believes it has authority over Section 3 challenges.)

(c) In Michigan, Secretary of State Jocelyn Benson rightly notes that her office must determine whether it has legal authority in this area, and if it does what its contours look like. Again, the precedent of Obama and Cruz litigation demonstrates that any determinations this cycle will create precedent for future challenges in future cycles.

Michigan is an interesting case. It had little in the way of “birther” challenges to Obama’s candidacy and none to Cruz or others (that I’ve seen). But it’s also a jurisdiction that in 1968 was one of the few to allow underage candidate Eldridge Cleaver to appear on the ballot (and to collect thousands of votes). It’s a state with more uncertainty than some others.

(d) At the other end of the spectrum is a state like Georgia. Here, again, the precedent set by a challenge to Obama’s eligibility in “birther” litigation, led by Orly Taitz, is instructive. In Farrar v. Obama, an administrative law judge in Georgia held that it had jurisdiction to consider eligibility challenges to Obama’s candidacy. The administrative law judge went on to hold Obama could appear on the ballot; that decision was ratified (in a perfunctory manner) by the Secretary of State.

The precedent was cited by challengers in a challenge to Marjorie Taylor Greene in 2022. Likewise, in that process, the ALJ had a hearing and issued a decision that permitted her to appear on the ballot, ratified by the Secretary of State, and subsequently appealed through the state court system (with perfunctory decisions affirming the decision).

(UPDATE: A reader helpfully passed along this analysis from Minnesota, a judicially-driven disqualification process in which individual voters have standing, another situation much more likely to reach the merits.)

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This process, as I’ve said before and I here repeat, is extraordinarily messy and decentralized. But I want to reiterate a point: If challenges are not using this specific, pre-existing mechanisms to address presidential qualifications challenges, which are contoured to each state’s specific law, the challenges are likely doomed to fail.

Election officials hold no unilateral power to exclude candidates from the ballot–and, frankly, we are fresh off a cycle where election officials purporting to take unilateral action without a statutory authorization to do so have been routinely losing challenges in mandamus. As I mentioned before, the only place I’ve seen the view that any election official holds the independent power and duty to review the qualifications of presidential candidates is Justice Roy Moore in Alabama in 2014. But that’s the gist of some letters being sent to secretaries of state right now–consider this line from a letter sent to Colorado:

In fact, notwithstanding any contrary statement of state law, the U.S. Constitution trumps any state law that would ostensibly require election officials to approve or certify an insurrectionist as a valid candidate for federal office. No state authority, including the state legislature or even the state constitution, could compel a state official to violate the U.S. Constitution. “[A]ny conflicting obligations” of state law “must give way” to federal law when there is a conflict. Washington v. Wash. State Comm’l Passenger Fishing Vessel Ass’n, 443 U.S. 658, 691–92 (1979). Any state law that purports to require election officials to misuse their official powers to aid a constitutionally ineligible insurrectionist in obtaining office must give way to the 14th Amendment.

(3) There is some discussion of candidates, like Asa Hutchinson or Chris Christie, filing challenges against Trump in states.

This is a curious discussion that really is designed to address one narrow issue–standing, the issue that doomed many challenges in federal courts for Obama and Cruz (see (1)). Competing candidates do have standing (at least, some circuits have recognized it) in a set of election cases.

But standing is only one hurdle, and it’s often not the important one in these cases. Many states allow voters to bring challenges in states under qualifications statutes (and note that Hutchinson, a voter in Arkansas, and Christie, a voter in New Jersey, may not even be statutorily eligible to bring challenges in most states). The principal issue above–whether the state has a mechanism to evaluate the qualifications of candidates–remains. It’s also unclear that a federal court would reach the merits without abstaining and opting to allow the state process to play out.

Again, we can look back to “birther” litigation to see how this played with another candidate, Alan Keyes, who did bring challenges to Obama’s eligibility–this would be the roadmap for challengers like Hutchinson or Christie.

Keyes often had timing issues filing litigation that allowed courts to swiftly end the challenge. But Keyes did survive the procedural hurdles in Keyes v. Bowen, a California appellate decision (not a federal court case). And then the court reached the issue of state power, as described in (2) above:

The aforementioned statutes do not impose a clear, present, or ministerial duty on the Secretary of State to determine whether the presidential candidate meets the eligibility criteria of the United States Constitution. Section 6041 gives the Secretary of State some discretion in determining whether to place a name on the primary ballot, but he or she has no such discretion for the general election ballot, which is governed by section 6901. With respect to general elections, section 6901 directs that the Secretary of State must place on the ballot the names of the several political parties’ candidates.

(The court here actually goes farther and suggests that states have no power to review qualifications at all, dismissing the Secretary’s decision to exclude Eldridge Cleaver from the ballot in 1968.)

This holding is interesting for another reason, and puts California closer to the New Hampshire camp. Months after this case, the California Secretary of State excluded 27-year-old Peta Lindsay from the ballot. In briefing by then-Attorney General Kamala Harris, the state defended the distinction in the Secretary of State excluding Lindsay but including (or, really, failing to investigate) Obama:

To the extent that Plaintiffs are referring to previous lawsuits, involving various attempts to remove from the ballot presidential candidates whose qualifications were fiercely contested, see, e.g., Robinson v. Bowen, 567 F.Supp.2d 1144, 1146- 47 (N.D. Cal. 2008) [challenge to John McCain’s candidacy by a presidential elector]; Keyes v. Bowen, 189 Cal.App.4th 647, 659-61 (2011), as this Court noted, Ms. Lindsay’s admitted and incontrovertible lack of eligibility fundamentally differentiates her from the presidential candidates in these lawsuits. (Order 11:19-22.) Because she is not “similarly situated” to these other candidates, the Secretary’s decision not to place Ms. Lindsay on the primary ballot does not violate the Equal Protection Clause.

And before the Ninth Circuit, the Secretary of State explained:

Here, the Secretary did not investigate or evaluate Ms. Lindsay’s qualifications; the Secretary just observed Ms. Lindsay’s admission of her age, which was alone sufficient to establish her ineligibility for office. Where, as here, a candidate is manifestly and inarguably unqualified, the Secretary may, in her discretion, decide not to place that candidate on the primary ballot. See Cal. Gov’t Code §§ 1360 [citing the oath of office].

California, then, has one of the more robust exercises of authority from a Secretary of State, citing the oath requirement–but only in the limited circumstances of an “inarguably unqualified” candidacy as admitted by the candidate herself (and as exercised similarly in 1968 with Cleaver).

Returning to the candidate issue…. Keyes as a candidate did not materially advance any legal argument that could have been made by other voters through established state processes. If candidates attempt to sue in federal court, they could quickly survive the standing hurdle, I suppose, but run into other issues on state power (or, say, abstention). Even pursuit of a declaratory judgment would require establishing some legal relations between the parties, which, again, would loop back to the state law issue.

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In short, at this stage, a lot of current strategies to challenge Trump’s eligibility will never get off the ground (i.e., setting aside all the legal and factual issues regarding Section 3 itself). They are attracting significant media attention and commentary, I suppose. But I do not anticipate any material legal challenges to advance (as I said back in November 2022) until December 2023 or January 2024 (and a reason why people like Ned have advocated so vociferously for a lawmaking body to establish a process that could begin earlier).