Mark R. Brown, Newton D. Baker/Baker and Hostetler Chair at Capital University Law School in Columbus, Ohio, argues that there is precedent for Donald Trump to be excluded from state ballots on 14th Amendment grounds...
In papers filed with the US Supreme Court, the Colorado Republican Party broadly (and erroneously) claimed that “[f]or the first time in American history, a former President has been disqualified from the ballot, [and] a political party has been denied the opportunity to put forward the presidential candidate of its choice.” As I have written elsewhere, these broad claims are far from true, since political parties have often been prevented by states from running their chosen presidential candidates, and both former and sitting presidents have been excluded from or left off state ballots.
To be sure, no presidential candidate or ex-president has ever been disqualified under Section 3 of the Fourteenth Amendment, which is why the Supreme Court has taken up Donald Trump’s and the GOP’s appeal from the Colorado Supreme Court, expedited the proceedings and promised an answer before the 2024 election. Although history teaches that political parties’ presidential candidates can be disqualified by state election officials, and that former presidents can be selectively left off ballots, Section 3’s application plows new ground. No sitting or former president, after all, has ever before attempted a violent insurrection.
Although Trump’s predicament raises some fascinating constitutional questions—like whether a president is an officer of the United States and whether anything short of a full Civil War qualifies as an insurrection—state election officials’ power to disqualify political parties’ chosen candidates is not one of them. One hundred years of practice and precedent make clear that they can.
A brief survey of the existing ballot access landscape proves the point. Article I, §§ 2 and 3 and Article II, § 1 of the US Constitution prescribe the qualifications of elected federal officials, that is, house members, senators and presidents, respectively. Both Articles I and II employ citizenship, residence and age restrictions for the task. Thus, presidents must be natural-born citizens, residents of the United States (for fourteen years) and at least 35 years of age. The age, citizenship and residence qualifications are not floors that can be built on by States (or even Congress). They are fixed. Satisfy these demands and one can be president.
Notwithstanding these basic qualifications, states were also granted the authority under Article I, § 4 and Article II, § 1 to determine the “manner” of electing the members of Congress and presidential electors. While states cannot add to the substantive eligibility criteria used for federal elected office (including the presidency), they enjoy wide discretion over the procedures used in conducting federal elections.
Up until the twentieth century, these procedures generally included informal, “write-in” ballots—meaning that voters could cast their votes for anyone and everyone, including candidates who were ineligible (and even those who refused to run). “Official” ballots did not yet exist, and there was no ex-ante method of enforcing the Constitution’s eligibility requirements or anything else.
This changed with the adoption of the secret ballot at the end of the nineteenth century. Official ballots required that states employ gatekeepers and develop rules to limit ballot access. Common to this day are signature collection requirements for candidates and political parties, as well as filing fees and early filing deadlines.
Not long after the adoption of official ballots, many states as part of the progressive movement began requiring that political parties hold primaries. The Supreme Court has so often sustained the primary requirement, (see, e.g., California Democratic Party v. Jones (2000)), that its constitutional application in Trump’s case must be conceded. Like it or not, states can demand political party primaries and can require that candidates collect signatures, pay filing fees and meet deadlines in order to run in them.
Following the advent of modern official ballots, some states continued to allow write-in votes for candidates, both in primaries and general elections. Others did not. This raised the question of whether voters enjoyed some sort of federal constitutional right to vote for whomever they wished in primaries and generally, irrespective of whose names appeared on ballots. The Supreme Court in Burdick v. Takushi (1992) ruled that voters did not enjoy such a right. Instead, voting rights can be limited by official ballots.
On top of restricting voters’ and parties’ choices through basic qualification procedures, some states have adopted anti-fusion laws (with the Supreme Court’s approval in Timmons v. Twin Cities Area New Party (1997)), prohibiting political parties from nominating candidates who have already been nominated by another political party. Others have employed “sore loser” laws, sustained by the Supreme Court in Storer v. Brown (1972), to limit political parties’ choices. Sore loser laws commonly prevent candidates who have lost a political party primary from running as an independent or for some other political party. The Libertarian Party’s presidential candidate in 2012 (Gary Johnson), for example, was disqualified under Michigan’s “sore loser” law because he ran in the GOP primary.
Although the Supreme Court has never decided the matter, states have also, in their capacities as gatekeepers, enforced the basic qualifying requirements found in Articles I and II. Professor Derek Muller concisely describes the many historical instances where this has happened. To be sure, states have also allowed ineligible candidates (including presidential hopefuls) to run. But the fact remains that constitutional eligibility requirements have in the past been enforced ex-ante.
All of this leads to Section 3, which is somewhat unique. Rather than being a qualification, it is a disqualification. Should this make a difference? Not necessarily. One assumes that if a president were removed from office through the impeachment process, and thereby disqualified from holding future office, state elections officials could enforce that result. Forcing his name onto ballots would simply make no constitutional sense.
The same should hold true with Section 3. The only difference is the matter of proof. With impeachment, the disqualification is obvious. Section 3’s dependence on insurrection requires a factual showing. State election officials and courts, however, resolve factual controversies in ballot access matters all the time. The validity of voters’ supporting signatures, residences of circulators (which can include intent) and political party memberships of primary candidates (which often focus on intent) offer just a few of the more common examples. Facts must be developed, intents ascertained and conclusions drawn. Elections officials have never been barred from enforcing legal requirements simply because facts are in dispute.
No obvious structural concerns or constitutional complaints would thus seem to prevent state elections officials and courts from incorporating Section 3 into an ex-ante ballot access analysis. Although he was not addressing disqualifications, then-Judge Gorsuch’s conclusion in Hassan v. Colorado (2012) that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office” would appear equally valid in the context of Section 3.
Restoring Trump to Colorado’s primary ballot will require breaking new constitutional ground. As explained above, it is not enough that a large number of voters want him. It is not enough that the GOP expects him to win its nomination. Parties have no right to run whomever they choose, after all, and voters have no right to vote for unqualified candidates. The question boils down to whether Trump is worth it. Is he worth ruling that presidents are not officers? Is he worth ruling that only super-serious insurrections are covered or that Colorado’s fact-finding was insufficient? Is he worth holding that Section 3 is not self-executing? Is he worth carving Section 3 out of the basic ex-ante ballot access process that has existed for over one hundred years? I don’t think so. Any and all of these conclusions would be constitutionally dubious, and Trump is simply not worth it.
Professor Mark R. Brown is the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School in Columbus, Ohio.
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