NRSC brief relies on U.S. Term Limits to argue that judging Trump’s qualifications today is an unconstitutional additional qualification

This amicus brief by the NRSC in the Trump Colorado ballot access case presents a very plausible path forward for the Supreme Court–but not one without its own challenges. From the brief’s opening:

First, the Colorado Supreme Court impermissibly altered the qualifications for the office of President and interfered with Congress’s sole prerogative to remove any section 3 disqualification. By its plain text, section 3 identifies a disqualification from serving in certain offices, but does not disqualify a covered person from running for office. And that textual distinction is particularly important because, unlike certain other disqualifications, section 3 makes that disqualification removable—and it commits the decision of whether and when to remove it exclusively to Congress. So even if the Colorado Supreme Court were correct that President Trump cannot take office on Inauguration Day, that court had no basis to hold that he cannot run for office on Election Day and also seek removal of any alleged disqualification from Congress if necessary. Indeed, the Twentieth Amendment expressly preserves the right of Presidential candidates to run, and the right of Congress to act, by prescribing an interstitial rule for situations where the President-elect has failed to attain the qualifications for office but can still do so during his Term—the Vice President serves as Acting President unless and until the disqualification is lifted.

The Colorado Supreme Court thus altered the qualifications for the office of President: it created a new rule that any section 3 disqualification must be removed by Congress before voters and a political party can even have the opportunity to vote for the candidate in their own primary election. But in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), all nine Justices agreed that States lack the power under the Constitution to use ballot-access restrictions to alter the qualifications for the office of President. See id. at 803-04 (maj. op.); id. at 855 n.6, 861-62 (Thomas, J., dissenting). And the Colorado Supreme Court’s error is particularly egregious in the context of section 3, because it effectively usurped Congress’s sole authority to decide when, if at all, to remove any section 3 disqualification. This error is a clear, indisputable, and sufficient basis to reverse the judgment below.

The brief is filed by former Solicitor General Noel Francisco and others at Jones Day.

The point reinforces several things at once–the exclusive enumeration of qualifications; the linguistic difference between “eligible” in Article II and “hold” in Section 3; Congress’s role in lifting disqualification; and the Twentieth Amendment. But the reliance on Term Limits is the lynch pin: a state cannot judge a qualification of a candidate too early, when the candidate may later be qualified, because it effectively creates an additional qualification.

I argued a similar point for members of Congress in 2022. But I have been hesitant to do the same for presidential candidates–for a host of reasons, I think the argument for state power over congressional elections is much weaker.

But this brief is the strongest argument in favor of the position that a premature adjudication of presidential qualifications functions as an additional qualification. Indeed, I think this is a very tempting route for the Court to take. It allows states to continue to exclude non-citizens and 21-year-olds from the ballot, while sending the case back to Colorado with instructions to put Trump on the ballot. It is worth a close read.

But I think it has potential weaknesses. For one, there are a couple of instances in history where states have disqualified underage candidates who would turn 35 sometime during the presidency–they could ultimately qualify. (The brief notes that judicial opinions upholding these actions are not opinions with much if any reasoning and should not be given much weight–fair enough.)

Another is practical. Both Rick H. and Ned worry about punting this issue to Congress, well after voters have cast their votes, and putting tremendous uncertainty and instability on the January 6, 2025 counting of electoral votes. Or tremendous pressure on a Twentieth Amendment that currently has no mechanism to ascertain whether a president elect has failed to qualify or how to implement it. A related concern is the state’s interest in protecting its ability to have its electoral votes counting. I don’t believe the state has the same interest in members of Congress (an election reserved to the people), but the state does, I think, have an interest in ensuring that its electoral votes will be counted in Congress. It’s been floated that Congress might refuse to count votes cast for a candidate who runs afoul of Section 3 of the Fourteenth Amendment. It puts states in a tough spot if they have to wait until after the election to know if their electoral votes will be thrown out.

Finally (and I am less persuaded by this, but it has arisen), every qualification is potentially lifted by, say, a constitutional amendment that reduces the age minimum to 14, or that abolishes the natural born citizen requirement.

In any event, while I am much more ambivalent on the right answer, the brief is quite strong and, as I said, an attractive avenue for the Court–even if it risks kicking the can down the road, which presents its own problems. We’ll see how the argument plays out in the weeks ahead. There are many ballot access issues beyond the text and interpretation of Section 3 that have not received nearly enough attention so far, and this brief is highlighting one of them.

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