This piece, by a columnist at the Seattle Times, is suddenly attracting terrific attention. It notes that Washington law allow someone “to challenge the right of a candidate to appear on the general election ballot after a primary” “Because the person whose right is being contested was, previous to the election, convicted of a felony by a court of competent jurisdiction, the conviction not having been reversed nor the person’s civil rights restored after the conviction.”

States routinely have such laws on the books, and they often do not clarify whether they apply only to state offices or to federal and state offices. But because states are categorically prohibited from adding qualifications to congressional offices after U.S. Term Limits, Inc. v. Thornton, it’s a reason to construe such statutes as applying to state offices. (Minnesota did so in 1950, for instance, in determining that its bar on ex-felons from holding office did not extend to congressional candidates.) But more generally, states cannot add qualifications to presidential candidates, either.

Start with the fact that Washington has let convicted felons like Eugene Debs, Eldridge Cleaver, and Lyndon LaRouche appear on the ballot and tabulate votes for them. (Granted, the ballot access rule is a newer one, but the prohibition, including prohibition on tabulating votes for ineligible candidates, stretches back much longer.)

Look back to Joseph Story (1833): “The truth is, that the states can exercise no powers whatsoever, which exclusively spring out of the existence of the national government, which the constitution does not delegate to them. They have just as much right, and no more, to prescribe new qualifications for a representative, as they have for a president. Each is an officer of the Union, deriving his powers and qualifications from the constitution, and neither created by, dependent upon, nor controllable by, the states. It is no original prerogative of state power to appoint a representative, a senator, or president for the Union. Those officers owe their existence and functions to the united voice of the whole, not of a portion, of the people. Before a state can assert the right, it must show, that the constitution has delegated and recognised it. No state can say, that it has reserved, what it never possessed.”

Trump v. Anderson likewise adopts this view: “Because federal officers ‘”owe their existence and functions to the united voice of the whole, not of a portion, of the people,”‘ powers over their election and qualifications must be specifically ‘delegated to, rather than reserved by, the States.’ U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 803–804 (1995) (quoting 1 J. Story, Commentaries on the Constitution of the United States §627, p. 435 (3d ed. 1858)). But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.”

Continue with the fact that courts have uniformly held that states cannot add qualifications for presidential candidates.

Start with Term Limits itself. While the majority and dissent vigorously disagreed whether states have the power to add qualifications for congressional candidates, Justice Thomas in dissent frankly acknowledged that “individual States have no ‘reserved’ power to set qualifications for the office of President.”

Likewise, in Chiafalo v. Washington, the Court, in a footnote, suggested as much: “And if a State adopts a condition on its appointments that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause.”

The lower courts have followed suit. Consider:

Nat’l Comm. of the U.S. Taxpayers v. Garza, 924 F. Supp. 71, 75 (W.D. Tex. 1996) (“The Court finds that the Texas statute is a ballot access regulation, not an indirect qualification for the office of President. Therefore, the holding of Term Limits is not dispositive in the present case.”)

LaRouche v. Fowler, 152 F.3d 974, 988 n.15 (D.C. Cir. 1998) (“Although the DNC rule may have added a qualification for the position of Democratic candidate for President, it did not and was not intended to add a qualification for the Office of President itself any more than would any political party’s basic requirement that its nominee be a member of the party.”)

Herman v. Local 111, United Steelworkers of Am., 207 F.3d 924, 925 (7th Cir. 2000) (“The requirement in the U.S. Constitution that the President be at least 35 years old and Senators at least 30 is unusual and reflects the felt importance of mature judgment to the effective discharge of the duties of these important offices; nor, as the cases we have just cited hold, may Congress or the states supplement these requirements.”)

Liberty Legal Found. v. Nat’l Democratic Party of the USA, Inc., 868 F. Supp. 2d 734, 741 (W.D. Tenn. 2012) (“Article II of the Constitution, which is the exclusive source for the qualifications for the Presidency, sets forth the natural born citizenship requirement.”)

Likewise, there was general consensus in 2015 that Hillary Clinton could not be ineligible for alleged violation of government record laws.

Admittedly, one can find some academic commentary to the contrary (and I concede, some of my earlier scholarship was less certain, but I have more recently felt increasingly comfortable in thinking about the relationship between state power over electors and state power over presidential elections). But the great thrust of

Of course, never say never to more election litigation. From the piece:

“I have clients lined up who are going to be all over pursuing a ballot challenge in this case,” says David Vogel, a Seattle attorney and former deputy prosecutor for King County who was briefly involved in an earlier ballot challenge against Trump before the presidential primary.