Richard Bernstein: “A Response to Professor Lederman on the Electors Clause Issue in the Trump Disqualification Case”

The following is a guest post from Richard Bernstein:

The formidable Prof. Marty Lederman recently has argued that the Electors Clause does not apply to presidential primaries because primaries elect delegates rather than electors. This particular argument, however, is wrong.

The Supreme Court has rejected a similar argument that the Elections Clause does not apply to congressional primaries.  United States v. Classic, 313 U.S. 299 (1941), held that the Elections Clause applies to congressional primaries because a primary is “a step in the exercise by the people of their choice of representatives in Congress.” Id. at 317.  This is so regardless of whether a party primary “invariably, sometimes or never determines the ultimate choice of the representative.”  Id. at 318.  

The same logic applies to the Electors Clause, as presidential primaries too are designed to have–and often do have–great influence over who appears on the general election ballot.  See id. at 318-19.  The two Clauses are also not distinguishable here because the Elections Clause would permit a state election for U.S. Senator to mimic the primary-convention-general election sequence of a presidential election.  Even today, in Iowa, if no candidate receives 35% of the party primary vote for U.S. Senator, the party’s state convention picks the U.S. Senate nominee.  See Iowa Code §§ 43.65, 43.78.1.a.

Moreover, assuming (for argument’s sake) that Prof. Lederman were correct, that would not help Trump in Trump v. Anderson.  If the Electors Clause does not apply at the presidential primary stage, then the Tenth Amendment and federalism protect a State’s reserved power to keep a federally-disqualified candidate off that State’s primary ballot for President.  See Shelby County v. Holder, 570 U.S. 529, 543 (2013) (Tenth Amendment protects state power over congressional elections); Chiafalo v. Washington, 140 S. Ct. 2316, 2334-35 (2020) (Thomas, J., concurring) (same for presidential elections).   

Indeed, as shown in the Luttig Amici Br. at 7, even outside the context of federal elections, a State may empower its courts to interpret and apply federal law, including when Congress has not created a federal cause of action. See ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989).   The exception would be if the Constitution or Congress created exclusive federal jurisdiction.  See id.  Neither Section 5 of the Fourteenth Amendment nor 18 U.S.C. § 2383 does anything like that.  See Luttig Amici Br. at 8-10.  However, if the Electors Clause does not apply, Mr. Trump could not use Moore v. Harper, 600 U.S. 1 (2023), to challenge how the Colorado Supreme Court interpreted its authority under Colorado law.

Finally, it would not change any First Amendment freedom-of-association issue whether  the source of a State’s power at the primary stage is reserved power under the Tenth Amendment rather than delegated power under the Electors Clause.  If a candidate is genuinely excluded by the Fourteenth Amendment, a State could exclude the candidate from a primary ballot without violating First Amendment associational rights.  See Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 124 n. 28 (1981) (in a presidential primary case: “A State, for example, ‘has an interest, if not a duty, to protect the integrity of its political processes from frivolous or fraudulent candidacies.’’’) (citation omitted); Griswold Br. at 40-47.  And, of course, Mr. Trump has not raised a First Amendment freedom-of-association argument.

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