I’ll give you the lede up front: It is complicated and fascinating. You’re not going to be satisfied with the analysis. You probably need to read it anyway.
State Elections and Ballot Access:
Let’s take a close look at the specific election mechanic steps. There are differences among all 50 states, and no two election systems are the same. However, they all follow four basic steps.
1) The Ballots are Printed: The first thing a candidate usually must do is get their name on the ballot. States have all kinds of access rules, often including paying certain fees, petition and signature count requirements, etc. For federal office, those requirements go above and beyond the mere eligibility for office.
2) Voting happens and the votes are counted: Election day comes and goes. There are provisional ballots, possibly spoiled ballots, mailed in ballots, recounts, and all of the issues associated with voter caging to deal with. Translating the line of people at the polling place into a ‘final number’ of votes is a process that can take some time.
3) A winner is certified: Most states use the criteria of ‘votes legally cast’ as the criteria for a winner. Most states have provisions for challenges to elections coded in law at this stage, after the vote counting but ahead of certification. Note that the ‘votes legally cast’ standard is interesting, in that it allows challenges for ballot stuffing or invalid voters, but does not allow for challenges arising from voter caging. IE, denying people the right to vote through removing them from the rolls, closing/moving polling places, or even intercepting and destroying ballots is not grounds for challenging an election.
4) Someone is installed in the office: The ‘winner’ of the election isn’t necessarily the one who takes office. Some states allow challenges to eligibility or outcome determinitive fraud throughout the entire term of office, others do not. In some states, if fraud is discovered too late and someone has been sworn into office, it is too late to challenge under state law.
If you think about it, elections would be unmanageable in current form if states couldn’t gate-keep their ballots using extra criteria. If there could be no requirements other than basic eligibility, then ballots would be as thick as a phone book as every crackpot candidate or ‘just for fun’ candidate could throw their name on the ballot and the state would be powerless to stop it.
Also exactly how the gatekeeping works for electoral issues differs from state to state. For example, some states count votes for write in candidates, and others do not. Some states have ‘sore loser’ laws that limit ballot or electoral access if a candidate loses a primary. Lisa Murkowski is a famous example of how someone denied main ballot access could potentially still win an election.
Vote counting, certification, and installation also vary from state to state. The simplest example is what happens when a candidate dies before the election but wins anyway. Some states will count votes for the deceased, and even generate a certification of that person as candidate-elect, while others will not.
Some states deal with eligibility issues as part of a candidate investigation prior to placing their name on the ballot. Some states, such as Colorado, allow electors to raise eligibility as a cause of action in court. Some states push the eligibility issue to a later point, leaving it up to the opposing candidate to raise eligibility as a cause of action later, after the votes are counted. In some cases, the challenge to eligibility must happen before the candidate-elect is sworn in, other states allow the loser to challenge eligibility at any time during the term.
Every system has its flaws, and most states’ electoral systems are designed for an orderly and manageable election. However, sometimes that isn’t how things go, and American history has its fair share of times that those things don’t work out that way. For example, there was a coup in 1898, and Alabama is dealing with a modern version as well.
So from how states manage their elections, there is no single, objective standard of fairness for who gets on the ballot. In addition, these factors weigh against the ‘preference of the voters’ in that not everyone gets to be on the ballot, even if they are qualified for office. I’ll also add in that it is a bit rich for Republicans, the party of dirty tricks and voter caging in modern times, to bleat about ‘voter preference’ in this situation when they have entire operations meant to undermine just that.
Michigan, Maine, and Colorado:
To understand the difference between the three states, it is important to start with the fact that Trump isn’t up for election in any of the 50 states in 2024.
You read that right. Part of the nuance with presidential elections is that we’re not actually voting directly for the president, we’re voting for a slate of electors, who then cast their votes for president. That it the essence of the electoral college. So when it comes to eligibility of presidential candidates, it is possible to argue a line that states shouldn’t arbitrate eligibility at all, and only the presidential electors are really standing for election.
In Maine and Colorado, the name on the ballot for president matters as much as the electors do, and they have a general approach that eligibility can be challenged for any candidate appearing on the ballot. In Michigan, the law is slightly different. The name of the candidate for President is simply a placeholder, and it is the slate of electors are the only ones who matter for the purpose of the election. The electors’ output is simply their votes to the archivist, and nothing more.
Presumptive or Demonstrated Eligibility:
When it comes to eligibility for office, it is worth noting that all three states have a presumption of eligibility. That means that the secretary of state does not actively investigate and certify eligibility for office of presidential candidates. Instead, they are presumed eligible unless challenged. All three states are responding to eligibility challenges.
What that means is that any supreme court finding of eligibility is not going to be self executing, but will require someone with standing to issue a challenge in all 50 states, either to the secretary of state, or through state courts.
Eligibility as a Gatekeeper or a Continuous Condition:
For election Congress, eligibility is generally a gatekeeper condition. While it has never been tested under the federal contested election statutes, if someone were to win an election but be found ineligible, their opponent would be sworn in to serve the entire term. An example of how that might work would be if someone were elected to the senate at the age of 29. The fact that they would become eligible for the seat partway into their term wouldn’t matter, only that they are not eligible on the swearing in date. The same thing is true for qualification of voting.
By the same token, eligibility does not seem to be a continuous issue for congresspeople. Even if the 14th amendment, section 3 is ‘self executing’, it does not seem to apply to congresspeople in office. For example, there were congresspeople who were clearly participants in the Jan 6 insurrection, yet they have not been locked out of the capitol.
The 20th Amendment:
The presidency is relatively unique in federal elected office in this regard because the 20th Amendment specifically uses a continuous eligibility standard. In particular, the 20th Amendment specifically contemplates that someone not eligible for the presidency could become president-elect:
Section 3. If, at the time fixed for the beginning of the term of the President, the President-elect shall have died, the Vice President-elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.
Despite the obvious patriotic considerations that someone who abused their office to the point of organizing an insurrection for the purpose of an autocoup has no business being within 100 miles of the white house, technically, the 14th amendment leaves open the possibility that the eligibility limitation is temporary. In the unlikely event that 2/3 of Congress votes to restore eligibility, the Jan 6 insurrection issue could be removed.
As an alternative way of looking at this issue, imagine if, riding on the success of the show Queen’s Gambit, American chess grandmaster Hikaru Nakamura had run for president in 2020 and won. He would not have been eligible by age to hold the office until 2022, but under the 20th amendment he would be waiting in the wings until there was a transfer of power upon reaching age 35.
The Other Basic Problem:
An obvious core issue in the ballot access question related to TFG is that law and the constitution is unclear on who and how eligibility for the office of the President is managed.
As a contrast, for congress, there is no such issue at all. The constitution specifies in Article 1:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
This provides that an appeal to the House (in this context meaning either House or Senate, as applicable) is a valid method for a challenge to eligibility. For the House of Representatives, there is a more formalized process in the Contested Elections Act. Under Term Limits, states are also permitted, but not required, to gatekeep based on either eligibility requirements found in the constitution, or impose limited measures to keep elections manageable consistent with the requirements of Equal Protection.
Looking at the Presidency, things are a bit murkier. Article 2, clause 3 states:
The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse [sic] by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse [sic] the President. But in chusing [sic] the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse [sic] from them by Ballot the Vice President.
The oath of office provision is similar in imperative language:
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.
The language leaves open only a small space when pulling in the 20th Amendment that suggests that the ‘shall be president’ clause is intended to be understood as the winner of the electoral college vote becomes ‘president elect’ and is not automatically sworn in. However, there is no constitutional process between the certification of the electoral votes and the swearing in.
The Electoral Count Act is no help here either. Congress could in theory alter the electoral count act, or use the nuclear option to disregard it and impose their own procedures on the count (unlikely given the current partisan nature of the current congress). The problem is that the congress is only counting electoral votes, the output is a vote count, with the count defining a president elect. There is no mechanism in the constitution for cogress to name a president elect but ensure that person does not assume the office due to eligibility issues.
The implication is that the only gatekeeper of eligibility once the electoral votes have been cast is witholding the oath of office. Unfortunately, there is no mandate on who gives the oath, and it has been given by a variety of people in the past, meaning that Steve Bannon could swear in a new president and as soon as the oath were taken (on live TV) transfer of the office would be automatic.
The Parade of Horribles:
Ballot access has just been opened up as a new front in partisan political warfare. Let’s not assume that this is going to stop with Joe Biden.
Quick answer here is: probably not. There are a number of supreme court cases listed on ballotpedia that make it clear that states may not too onerously limit ballot access for candidates. Given how partisan gerrymandered districts already skew voting, it will take some creativity for republicans to effectively use ballot access as an additional means of control. In particular, Term Limits equates ballot access with qualifications for office.
It is important to note that Term Limits was a 5-4 decision, and could be an easy precedent to try to get overturned in the future, especially based on Thomas’s dissent.
The other issue that we’re going to have to deal with is insurrection and ballot eligibility as a front in campaigns. There has already been a history of agitators, including government ones infiltrating events. A future group of agent provocateurs could infiltrate political events to start violence for the purpose of pushing a candidate over the threshold of insurrection. All of the elements are in place and we’re already crossed that Rubicon.
Other Takeaways:
Up until the 20th Amendment was passed, the only real provision to deal with eligibility would have been denial of electoral votes. The basic idea being that someone who is not eligible for the office is not eligible to receive electoral votes for the office in the first place, and so any such votes would be out of order.
A key question for the supreme court is how to handle the contemplation of an ineligible president. Is the provision of section 3 of the 20th amendment. Is that provision a narrow ‘corner case’ situation which is only meaningful for eligibility issues that are discovered late in the process, or is it a permanent wedge in the door that keeps open the possibility of anyone becoming president-elect regardless of eligibility? If the latter, what is to prevent a crony from administering the term of office and making the eligibility component of article 2 meaningless?
At the Supreme Court:
I don’t think that the court can avoid tackling the core issue of eligibility. It is a threshold issue and settling that issue is necessary before a question about Jan 6 as an insurrection is even meaningful. The fact that all 50 states deal with elections and eligibility differently is going to pose a problem.
As far as whether Jan 6 was an insurrection, the court can easily dodge, and it is likely they will since that would put them in the position of being a trier of fact, which they generally like to avoid. There is also the problem that Joe Biden, not TFG is the president currently. That means it would be difficult to hold that the president isn’t covered by the 14th amendment, or that conduct substantially identical to Jan 6 is not an insurrection, because that would open the door to helping Joe Biden, in addition to breaking every norm the constitution stands for.
I don’t think the court can hold that states have no role in gatekeeping eligibility for presidential candidates. Doing that throws the whole issue to congress as the only gatekeeper, blows up the limited conventions in the electoral count act, and basically renders the eligibility provisions under Article II of the constitution meaningless in the current political environment. Leaning too hard on the provisions of the 20th amendment is also a no-win direction for the court because that blows up ballot access control laws such as sore-loser laws and whether or not write in votes must be counted.
Given those constraints, I think the supreme court is going to hold the following:
1) A state court cannot be the arbiter of constitutional eligibility for president. They will point to equal protection considerations as justification that multiple state courts cannot hear the same case of fact and potentially come to different conclusions. Therefore only a federal court can be a trier of fact with respect to constitutional eligibility for president.
2) A State is permitted to use constitutional eligibility criteria for ballot access.
3) It is possible that the supreme court will even shine light on the issue of who are the enforcers of eligibility. They could require states to maintain a provision for addressing eligibility in state law. Two possible areas they could clarify is that they could use the eligibility criterion to hold that a state governor may not cause electoral votes to be cast for an ineligible candidate (requiring state legislators to control via ballot access or choose not to transmit electoral votes), or requiring a mechanism to limit ballot access.
If the court is going to try to help TFG, I think their only option is to impose some obtuse requirements on the federal court to define ‘insurrection’ or to rule in a way that requires a conviction in federal court. That uses the tactic of ‘delay to irrelevancy’ while leaving the precedent in place that binds Biden, with not enough time to apply the rules ahead of the election.
