The Colorado trial court hearing the challenge to Trump’s qualifications scheduled a five-day hearing to begin October 30 to adjudicate the claim. Does such a hearing pass scrutiny under the Anderson-Burdick balancing test?

I’ve been surprised at how little I’ve read about Anderson-Burdick in these cases. The issue basically didn’t come up at all in the congressional cases in 2022–even in the cases where collateral cases were filed in federal court to enjoin the state administrative proceedings. But the classic Anderson-Burdick case is ballot access. And Anderson was a presidential election case. How might it play out?

Back in 2011, when Arizona considered requiring presidential candidates produce a birth certificate as a condition of securing ballot access, scholarly commentary noted that the question of permissibility was a genuine one. But to turn specifically to Anderson-Burdick, a very real question is: would the burden this rule place on candidates (which would verify both age and natural born citizen status) be outweighed by the state’s interest in ensuring only qualified candidates appeared on the ballot?

The least onerous way for states to patrol qualifications is a statement requiring affirmation under penalty of perjury that candidates are qualified. That barrier has been enough to keep a number of candidates off the ballot (including the series of cases involving Abdul Hassan in 2012).

More onerous, I think, is requiring a birth certificate (particularly if the state qualifies that the birth certificate must be a “long form” or have a particular type of seal or whatever other attendant facts might have attended “birther”-style legislation). (That said, I wrote a few years ago that I think this kind of rule would likely pass Anderson-Burdick scrutiny.)

Still more onerous might be rules like Minnesota’s, which empowers courts to “order the candidate to appear and present sufficient evidence of the candidate’s eligibility.”

Meanwhile in Colorado, the district court judge has scheduled a five-day hearing, with 36 hours of hearing time to be divided between the parties, along with opportunity for experts to appear and testify. The court offered a non-exhaustive list of questions it wants to address (sorry, the order is not yet online as far as I can see):

1. How often and on what basis does the Secretary of State exclude candidates based
   on constitutional deficiencies?
2. The process for drafting and approving the Major Party Candidate and Statement
   of Intent and who can revise or edit it?
3. The meaning and historical application of Section 3 of the Twentieth Amendment.
4. The 2022 revisions to 3 U.S.C. § 15.
5. The history and application of Section 3 of the Fourteenth Amendment.
6. Is Section 3 of the Fourteenth Amendment self-executing?
7. Does Section 3 of the Fourteenth Amendment apply to Presidents?
8. The meaning of “engaged” and “insurrection” as used in Section 3 of the
   Fourteenth Amendment.
9. Did Intervenor Trump’s actions meet the standard set forth in Section 3 of the
   Fourteenth Amendment?

These things are all on the burden side–and to me, this seems like something of a burdensome process for ballot access.

But burden is not the end. That burden of state regulation surrounding a presidential candidate’s access to the ballot is weighed against the state’s interest in administering the election.

Over on the state’s interest side–because recall that even somewhat burdensome rules can pass scrutiny with adequate justification. There are factors that cut in different directions.

On the one hand, the state’s interest in presidential elections is actually lower than other elections, because one state’s decision in a presidential election has a national effect. Here’s the Court in Anderson:

Furthermore, in the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus in a Presidential election a State’s enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders. Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State’s boundaries. This Court, striking down a state statute unduly restricting the choices made by a major party’s Presidential nominating convention, observed that such conventions serve “the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State.” Cousins v. Wigoda, 419 U. S. 477, 490 (1975). The Ohio filing deadline challenged in this case does more than burden the associational rights of independent voters and candidates. It places a significant state-imposed restriction on a nationwide electoral process.

On the other hand, the state’s interest in ensuring only qualified candidates get through the presidential nomination process is pretty high. In the end, the state’s electors only have one shot at getting their votes counted in Congress (every four years on January 6). There is no opportunity for a presidential election do-over. The risk of congressional rejection is serious. The interest is also heightened given that Colorado (and Minnesota) have laws that penalize “faithless” electors and replace electors who vote for candidates other than those they are pledged to support. That makes the candidates listed on the ballot all the more important–electors may vote only for those candidates. And this interest would understandably extend to the primary election–if the state is going to run a publicly-financed primary election, it would assuredly want to ensure that its participation is limited to eligible candidates. (And the party is, of course, free to hold a privately-run caucus if it so desires.)

Let’s also add one twist. There’s been some suggestion in recent years, in a few corners, that the Anderson framework is uniquely poorly situated for presidential elections precisely because the legislature’s power is “plenary,” to borrow an older judicial phrase, over the manner of appointing electors. Indeed, this was the basis of then-Justice Rehnquist’s dissenting opinion in Anderson.

Of course, this reverses the typical partisan valence in these cases. In recent years, those on the right have often been more skeptical of Anderson, while those on the left often seek it to be applied more robustly. A robust application of Anderson may weigh against the kind of hearing that Colorado is holding here against candidate Donald Trump; a standard more deferential to state interests with less robust judicial review may support a strong and thorough state judicial hearing.

Two more caveats.

First, all litigation surrounding ballot access comes at a cost of, well, litigation. And it’s true that litigation can arise in the context of other ballot access rules–for instance, a candidate who’s required to submit 100 signatures from registered voters in the district, and turns in 100, but a statute allows any voter to challenge those signatures, and a voter finds 3 fraudulent signatures, leading to a hearing an a presentation of evidence, is, in fact, a burden. This rarely (if ever?) faces Anderson claims. And maybe the cost of doing business is what it is and falls outside the scope of typical Anderson stuff. Then again, maybe there’s something different in contesting the paperwork filed by candidates, and a separate freestanding mechanism to contest qualifications of candidates. I’m not sure.

Second, the candidates can always just ignore the lawsuit… which is not legal advice, and this comes at a calculated risk. Here’s what happened in Georgia in 2012 when Barack Obama didn’t show:

However, neither Defendant nor his counsel, Michael Jablonski, appeared or answered. Ordinarily, the Court would enter a default order against a party that fails to participate in any stage of a proceeding. Ga. Comp. R. & Regs. 616-1-2-.30(1) and (5). Nonetheless, despite the Defendant’s failure to appear, Plaintiffs asked this Court to decide the case on the merits of their arguments and evidence. The Court granted Plaintiffs’ request.

By deciding this matter on the merits, the Court in no way condones the conduct or legal scholarship of Defendant’s attorney, Mr. Jablonski.

Well, maybe that’s not a risk one ought to take generally, I suppose….

I don’t know how this will play out, if at all. As I mentioned earlier, this line of argument received essentially no attention in the congressional challenges in 2022. It’s possible they are brushed aside for one reason or another in these challenges in the months ahead. But it’s one more thing I’m watching in the months ahead.