The supreme court has taken up the cases of TFG’s disqualification in Maine and Colorado. I am fairly confident that they are going to rule that only a federal judge can rule on the constitutional eligibility, but keep state laws in place with respect to how they deal with eligibility. In a scenario like that, the next step would be a lightning round through the DC circuit court and likely DC court of appeals with a resolution likely by March or April, almost certainly ending up in the same analysis that Colorado came to already. This is actually an absolute nightmare scenario for republicans.
The Nightmare (for Republicans):
TFG successfully messages the challenges to his eligibility into increased name recognition and beats back his primary challengers. TFG cruises through super Tuesday and picks up enough pledged delegates to sew up the republican nomination. The final process that declares him ineligible happens too late to block him from the republican primaries. The convention is going to be pandemonium since the party may be forced to accept a candidate that is ineligible for office (and possibly already in prison) but trapped by their own rules and the virulent loyalty of the candidates. Their only hope is that for enough states, their election laws will keep TFG on the ballot or that the state is controlled by enough MAGAs to subvert state law and keep him on the ballot.
Context:
From a political perspective, TFG’s disqualification is largely irrelevant in states with a partisan voter index bluer than Nevada. TFG is simply not going to win states that he lost in 2016 by multiple percentage points, so being disqualified from the ballot doesn’t matter in those states in the same way it matters in a swing state.
Let’s go through the election laws of the key swing states (ones that TFG won in 2016 but flipped in 2020, and a couple other close ones) to determine what happens. Arizona, Michigan, Nevada, North Carolina, Ohio, Pennsylvania, Wisconsin will be our test cases.
It is interesting to note how different the states are. They don’t even agree with who is being elected in the presidential election (is the candidate for president a candidate in the state or not, or are the presidential electors the ones on the ballot?). On any topic, whether it is ballot access, how challenges should work in elections, or how clearly procedures are spelled out, they are all over the place. Strap in.
Arizona: There is a blanket challenge process in Arizona for ballot access.
B. Any elector may challenge a candidate for any reason relating to qualifications for the office sought as prescribed by law, including age, residency, professional requirements or failure to fully pay fines, penalties or judgments as prescribed in sections 16-311, 16-312 and 16-341, if applicable.
Unlike some other states this is up to the discretion of a court, as opposed to a secretary of state, and does not have language requiring mandatory ballot removal or disqualification. However, if a federal court rules that TFG is ineligible, it will take some mental gymnastics for a state court to refuse removal. It is probably worthwhile to point out at this juncture that the AZ supreme court has been packed by republicans.
Georgia:
§ 21-2-5. Qualifications of candidates for federal and state office; determination of qualifications
(a) Every candidate for federal and state office who is certified by the state executive committee of a political party or who files a notice of candidacy shall meet the constitutional and statutory qualifications for holding the office being sought.
(b) The Secretary of State upon his or her own motion may challenge the qualifications of any candidate at any time prior to the election of such candidate. Within two weeks after the deadline for qualifying, any elector who is eligible to vote for a candidate may challenge the qualifications of the candidate by filing a written complaint with the Secretary of State giving the reasons why the elector believes the candidate is not qualified to seek and hold the public office for which he or she is offering. Upon his or her own motion or upon a challenge being filed, the Secretary of State shall notify the candidate in writing that his or her qualifications are being challenged and the reasons therefor and shall advise the candidate that he or she is requesting a hearing on the matter before an administrative law judge of the Office of State Administrative Hearings pursuant to Article 2 of Chapter 13 of Title 50 and shall inform the candidate of the date, time, and place of the hearing when such information becomes available. The administrative law judge shall report his or her findings to the Secretary of State.
(c) The Secretary of State shall determine if the candidate is qualified to seek and hold the public office for which such candidate is offering. If the Secretary of State determines that the candidate is not qualified, the Secretary of State shall withhold the name of the candidate from the ballot or strike such candidate's name from the ballot if the ballots have been printed. If there is insufficient time to strike the candidate's name or reprint the ballots, a prominent notice shall be placed at each affected polling place advising voters of the disqualification of the candidate and all votes cast for such candidate shall be void and shall not be counted.
Michigan: The candidate for President isn’t on the ballot under Michigan law. Michigan does have a new provision allowing a presidential candidate to go to court to challenge the outcome of the election. However, most of the discussion of challenges deals with individual ballots, so it is not clear how an argument about eligibility would work.
Nevada: If a court ‘of competent jurisdiction’, suggesting either Nevada or a federal court, then it is not optional and TFG must be removed from the ballot, unless the statutory printing deadline has passed.
NRS 293.2045 Remedies in preelection actions challenging candidates who fail to meet qualifications for office; disqualification from taking office; removalfrom ballot or notification to voters at polling places; applicability.
1. In addition to any other remedy or penalty provided by law, but except as otherwise provided in NRS 293.1265, if a court of competent jurisdiction finds in any preelection action that a person who is a candidate for any office fails to meet any qualification required for the office pursuant to the Constitution or laws of this State:
(a) The name of the person must not appear on any ballot for the election for which the person filed a declaration of candidacy,except that if the statutory deadline for making changes to the ballot has passed, the provisions of subsection 2 apply; and
(b) The person is disqualified from entering upon the duties of the office for which the person filed a declaration of candidacy.
2. If the name of a person who is disqualified from entering upon the duties of an office pursuant to subsection1 appears on a ballot for the election because the statutory deadline for making changes to the ballot has passed, the appropriate election officers shall post a sign at each polling place where the person’s name will appear on the ballot informing voters that the person is disqualified from entering upon the duties of the office.
3. The provisions of this section apply to any preelection action brought to challenge a person who is a candidate for any office on the grounds that the person fails to meet any qualification required for the office pursuant to the Constitution or laws of this State, including,without limitation, any action brought pursuant to NRS 281.050, 293.182 or 293C.186 or any action brought for:
(a) Declaratory or injunctive relief pursuant to chapter 30 or 33of NRS;
(b) Writ relief pursuant to chapter 34 of NRS; or
(c) Any other legal or equitable relief.
(Added to NRS by 2017,3295; A 2019,3384)
North Carolina: Candidates may be challenged on eligibility grounds, but the law doesn’t explicitly say what happens to ineligible candidates, or that ineligible candidates are forced out of the election process. However, there is a clear burden of proof requirement that suggests that a federal court finding would be essentially impossible for a candidate to overcome barring blatant political partisanship on the part of the appeals court or the board.
G.S. 163-127.2 Page 1
§ 163-127.2. When and how a challenge to a candidate may be made.
(a) When. – A challenge to a candidate may be filed under this Article with the board of elections receiving the notice of the candidacy or petition no later than 10 business days after the close of the filing period for notice of candidacy or petition.
(b) How. – The challenge must be made in a verified affidavit by a challenger, based on reasonable suspicion or belief of the facts stated. Grounds for filing a challenge are that the candidate does not meet the constitutional or statutory qualifications for the office, including residency.
(c) If Defect Discovered After Deadline, Protest Available. – If a challenger discovers
one or more grounds for challenging a candidate after the deadline in subsection (a) of this section, the grounds may be the basis for a protest under G.S. 163-182.9. (2006-155, s. 1; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)
§ 163-127.5. Burden of proof.
(a) The burden of proof shall be upon the candidate, who must show by a preponderance of the evidence of the record as a whole that he or she is qualified to be a candidate for the office.
Similarly to Arizona, the NCSC is a potential problem.
Ohio: About as unclear as you can get, the relevant line in the Ohio election code is as follows:
(A) The secretary of state or a board of elections shall accept any petition described in section 3501.38 of the Revised Code unless one of the following occurs:
(4) The candidate's candidacy or the petition violates the requirements of this chapter, Chapter 3513. of the Revised Code, or any other requirements established by law.
The 90 day deadline has already passed for the Ohio primary. Note that the law describes the candidacy or the petition as the subject of potential rejection, but there is no law, either Ohio or Federally, that specifically makes it illegal to be a candidate for President if ineligible, and the declaration of candidacy form doesn’t require a sworn statement of eligibility. It appears that the Ohio code intends such disputes to be settled in court with a contest of elections, with residency being the main issue contemplated. The problem is that Ohio washes its hands of all federal office eligibility questions:
(A) Except as otherwise provided in this division, the nomination or election of any person to any public office or party position or the approval or rejection of any issue or question, submitted to the voters, may be contested by qualified electors of the state or a political subdivision. The nomination or election of any person to any federal office, including the office of elector for president and vice president and the office of member of congress, shall not be subject to a contest of election conducted under this chapter. Contests of the nomination or election of any person to any federal office shall be conducted in accordance with the applicable provisions of federal law.
Pennsylvania: Consistent with Michigan, the Presidential election focus is on the slate of presidential electors, not the candidate themself. Therefore there qualification of the presidential candidate is not a factor in state law, only the individual qualifications of electors.
Wisconsin: Things are unusual in that the applicable law section is at the discretion of the official who is responsible for receiving the statement of candidacy.
8.30 Candidates ineligible for ballot placement.
(1) Except as otherwise provided in this section, the official or agency with whom declarations of candidacy are required to be filed may refuse to place the candidate's name on the ballot if any of the following apply:
(a) The nomination papers are not prepared, signed, and executed as required under this chapter.
(b) It conclusively appears, either on the face of the nomination papers offered for filing, or by admission of the candidate or otherwise, that the candidate is ineligible to be nominated or elected.
(c) The candidate, if elected, could not qualify for the office sought within the time allowed by law for qualification because of age, residence, or other impediment.
Wisconsin also has a law against filing false statements with respect to candidacy which likely comes into play for certificates of candidacy:
(1) Each candidate, except a candidate for presidential elector under s.
8.20 (2) (d), shall file a declaration of candidacy, no later than the latest time provided for filing nomination papers under s.
8.10 (2) (a),
8.15 (1),
8.20 (8) (a) or
8.50 (3) (a), or the time provided under s.
8.16 (2) or
8.35 (2) (c). A candidate shall file the declaration with the officer or agency with which nomination papers are filed for the office that the candidate seeks, or if nomination papers are not required, with the clerk or board of election commissioners of the jurisdiction in which the candidate seeks office.
(2) The declaration of candidacy shall be sworn to before any officer authorized to administer oaths. The declaration shall contain the name of the candidate in the form specified under s.
8.10 (2) (b) for candidates for nonpartisan office or s.
8.15 (5) (a) or
8.20 (2) (a) for candidates for partisan office and shall state all of the following:
(a) That the signer is a candidate for a named office.
(b) That the signer meets, or will at the time he or she assumes office meet, applicable age, citizenship, residency, or voting qualification requirements, if any, prescribed by the constitutions and laws of the United States and of this state.
(c) That the signer will otherwise qualify for office if nominated and elected.
I will note that the Wisconsin SOS is a democrat.
Result:
Ballot disqualification is mainly relevant at the presidential level in a ‘TFG wins’ scenario’. If TFG flames out and loses the nomination (unlikely) or becomes so toxic that Biden would crush him, then disqualification has a less significant effect. There will be a republican at the head of the ticket (even if it is a substitute) and disqualification of TFG won’t mean that Biden runs unopposed except in the battle of wits sense. So to assess the impact, consider a ‘plausible best case’ scenario for TFG, for which 2016 is probably as good a model as any.
Assuming that states with any discretion and republican courts and legislatures will use any discretion they have to keep TFG on the ballot is probably reasonable. That sets careful expectations. Even so, Wisconsin, Georgia, and North Carolina have strong enough language or a political context that TFG is almost certainly off the ballot in all three states. If we look at a 2016 map, all three states went to TFG. If all three flipped Dem and the map was otherwise identical to 2016, then Biden would win with 274 electoral votes.
Bonus: The analysis above was being careful. Every red state that TFG is disqualified from creates problems for the republican party if TFG is the nominee, with depressed turnout, and Democrats likely to over perform in down-ticket races. Here is one additional one I found that was particularly juicy:
Sec. 192.031. PARTY CANDIDATE'S ENTITLEMENT TO PLACE ON BALLOT. (a) A political party is entitled to have the names of its nominees for president and vice-president of the United States placed on the ballot in a presidential general election if:
(1) the nominees possess the qualifications for those offices prescribed by federal law;
(2) the party's state chair signs a written certification of:
(A) the names of the party's nominees for president and vice-president; and
(B) the names and residence addresses of presidential elector candidates nominated by the party, in a number equal to the number of presidential electors that federal law allocates to this state;
And
Sec. 192.061. WITHDRAWAL, DEATH, OR INELIGIBILITY GENERALLY. With respect to withdrawal, death, or ineligibility of a presidential or vice-presidential candidate in a general election, this subchapter supersedes Subchapter A, Chapter 145, to the extent of any conflict.
Sec. 192.062. PRESIDENTIAL OR VICE-PRESIDENTIAL PARTY NOMINEE. (a) The secretary of state shall certify in writing the name of a political party's replacement nominee for president or vice-president of the United States as follows:
(1) for placement on the ballot for an original nominee who withdraws, dies, or is declared ineligible on or before the 74th day before presidential election day if the party's state chair delivers certification of the replacement nominee's name, signed by the state chair, to the secretary of state not later than 5 p.m. of the 71st day before presidential election day; or
(2) to the nominating party's presidential elector candidates for an original nominee who withdraws, dies, or is declared ineligible after the 74th day before presidential election day if the party's state chair delivers certification of the replacement nominee's name, signed by the state chair, to the secretary of state not later than 2 p.m. on the Monday after the second Wednesday in December of a presidential election year.
(b) If the state chair's certification of a replacement nominee is delivered by mail, it is considered to be delivered at the time of its receipt by the secretary of state.
(c) The name of a nominee who has withdrawn, died, or been declared ineligible shall be omitted from the ballot and the name of the replacement nominee placed on the ballot if a replacement nominee is certified for placement on the ballot as provided by this section. Otherwise, the withdrawn, deceased, or ineligible nominee's name shall be placed on the ballot.
(d) A vote for a withdrawn, deceased, or ineligible nominee whose name appears on the ballot shall be counted as a vote for the nominating political party's presidential elector candidates.
If you haven’t guessed or googled it, this one is Texas, and the language is very straightforward.