In the most recent episode of his podcast in which Rick H was his guest (and which I highly recommend for its discussion of Rick’s new book as well as the pending Colorado case), Chuck Todd asked Rick what would happen if Arnold Schwarzenegger ran for president as the No Labels candidate despite being ineligible because he wasn’t born a U.S. citizen. Rick correctly responded by saying that there would be litigation over his ineligibility and, citing then-Judge Gorsuch’s decision in a case involving the same issue, in states like Colorado Schwarzenegger’s name would be removed from the ballot (and thus it would be too risky for No Labels to pick him as its nominee).
But in light of Edward Larson’s amicus brief in the Colorado case, I want to address this issue from a different direction. Suppose states decided not to enforce the “natural born citizen” clause of the Constitution and let Schwarzenegger be on the ballot. As Derek Muller has repeatedly written, both in his published articles and his own amicus brief in the Colorado case, states have the Article II power to choose to let their citizens appoint electors who will vote for an ineligible presidential candidate. For states to exercise their Article II power in this way would be a very bad idea in my view–because it would let the state’s citizens potentially waste their votes on someone not entitled to serve as president–but I don’t disagree with Derek that Article II permits states to make this mistake.
Suppose, then, hypothetically that enough states let Schwarzenegger be on the ballot, he wins the popular vote in states having at least 270 votes, and the duly appointed electors in these states fulfill their pledge to cast their electoral votes for him as the No Labels nominee. Thus, 270 (or more) electoral votes get sent to Vice President Harris to be opened at the joint session of Congress on January 6, 2025. What happens then?
Larson’s brief seems to say that Congress would be powerless to enforce the Constitution’s disqualification of Schwarzenegger after he has won a majority of Electoral College votes cast by duly appointed electors. Larson’s brief is a bit unclear on this point. Often, it says that Congress lacks “exclusive” or “sole” power to enforce the Constitution’s provisions regarding presidential eligibility requirements. But in other places the brief goes further to say that Congress has no power at all, unless the disqualification occurs or is discovered after the electors cast their presidential votes. For example, on page 9, the brief asserts: “nothing indicates that the power to enforce those qualifications falls to Congress—much less that Congress’s power would be exclusive.” And on page 10, the brief adds: “Furthermore, there is still no provision of the constitution that gives Congress the power to enforce the constitutional qualifications of the presidency and to disqualify anyone from serving as the president.”
Larson’s brief is focused exclusively on the Twentieth Amendment, and there is much that is commendable and valuable about the brief. Larson is one of the very few experts on the history and original understanding of the Twentieth Amendment, and his brief provides an important service to the Court (in the way that amici briefs are supposed to do) in applying his expertise to the circumstances of this case. Moreover, insofar as his brief repeatedly emphasizes the power of the states under Article II to enforce the Constitution’s disqualification provisions applicable to the presidency, the brief is in agreement with the one I participated in (along with Ben Ginsberg and Rick H).
Still, I find it puzzling that Larson would argue, assuming he does, that Congress cannot prevent the inauguration of a president-elect who was disqualified at the time the electors voted for that individual, with Congress then requiring the vice president-elect to “act as president” instead as provided in the Twentieth Amendment. After all, if Schwarzenegger wins 270 or more electoral votes at the time he’s ineligible to serve because he wasn’t born a U.S. citizen, then it would also be true that as “president-elect” he still would have “failed to qualify” at the time Congress counted the electoral votes–and thus it would seem to fall within the explicit text of the Twentieth Amendment that he could not be inaugurated president despite being the president-elect, and that the vice president-elect would have to “act as President until a President shall have qualified.”
Larson spends a lot of his brief equating a dead president-elect with a disqualified president-elect, and it is true that the issues of death and disqualification are related for purposes of the Twentieth Amendment. But the two issues are not identical in terms of the role that the joint session of Congress plays in counting the electoral votes. If a president-elect dies after the duly appointed electors have voted for that individual, there was nothing improper about the casting of those electoral votes (as Larson correctly observes). Thus, under the Twelfth Amendment and the new Electoral Count Reform Act (ECRA), there would be no basis for members of Congress to object to those electoral votes on the ground that they were not “regularly given.” See 3 U.S.C. 15(d)(2)(B)(ii)(II). By contrast, if electors vote for Schwarzenegger knowing that he is constitutionally ineligible because he was not born a U.S. citizen, there is a very strong argument–as Derek has previously explained–that those electoral votes were “not regularly given” within the original understanding of that term, which was part of the 1887 Electoral Count Act and carried forward into the ECRA.
I suppose one could argue that the ECRA is unconstitutional in this respect and that Congress is bound to let a constitutionally ineligible president-elect take office despite the electors having cast their votes in violation of the Constitution. Moreover, as our amicus brief argued, it’s very troubling that the ECRA would seem to require Congress not to count electoral votes that are “not regularly given,” rather than counting the electoral votes for the ineligible president-elect, but then letting the vice president-elect “act as president” according to the Twentieth Amendment. We very much hope Congress never has to confront a situation that would require it to resolve the apparent tension between the ECRA and the Twentieth Amendment in this respect. But if Schwarzenegger really were to win an Electoral College majority, after states let their electors vote for him despite his obvious ineligibility to serve, it would seem to me that the best reading of all the relevant constitutional provisions (in Article II and the Twelfth and Twentieth Amendments) would be to say that the obligation of the joint session of Congress under the Twelfth Amendment upon receipt of these constitutionally improper electoral votes would be to effectuate the intent of the Twentieth Amendment by declaring that under the circumstances on January 20 only the vice president elect may be sworn into office and thus, upon being sworn in, given the absence of a president starting at noon that day must immediately act as president.
After all, if states can let their electors vote for Schwarzenegger and force Congress to let him take office if he wins, then states could also let their electors vote for Obama–and force Congress to let him become president for a third term–despite his equally obvious ineligibility given the Twenty-Second Amendment. But the provisions of the Constitution shouldn’t be so easily nullified by states willfully disregarding them.