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A Constitutional Crisis No One Is Thinking About
States should embrace electoral reforms to ensure an ineligible Trump isn't elected POTUS anyway
Cenk Uygur is a left-wing commentator whose online show “The Young Turks” has been running for more than 20 years. He recently made news by announcing he will run for president against Joe Biden in the Democratic primary.
Aside from many other good reasons to not take him or his candidacy too seriously, there is one glaring problem: Cenk Uygur is not eligible to be president. Born in Turkey, he is a naturalized U.S. citizen and thus barred from the presidency by the Constitution’s “natural born citizen” requirement.
“Cenk 2024” isn’t going anywhere even if you think, as I do, that naturalized citizens should have full legal and political equality. But he’s not the only presidential candidate facing a potential constitutional problem. Under a theory gaining steam, Donald Trump’s attempted coup on Jan. 6, 2021, disqualifies him under Section 3 of the 14th Amendment.
Settling Trump’s eligibility in the courts as soon as possible is paramount if the country is to avoid a potential constitutional crisis following the 2024 presidential election. And to ensure the courts can rule, state legislatures should consider clarifying an often neglected and seemingly mundane part of their state election laws: ballot access. Failing to pass such reforms could leave the courts on the sidelines and set Americans up for a Jan. 6, 2025, that dwarfs the chaos of Jan. 6, 2021.
The 14th Amendment and ‘Insurrection’
The little-known Section 3 of the 14th Amendment was originally written after the Civil War to bar ex-Confederates from holding office again if they had broken a previous oath to support the Constitution by having “engaged in insurrection or rebellion against the [United States], or given aid or comfort to the enemies thereof.” With the collapse of Reconstruction, Congress passed broad amnesties of the ex-rebels as allowed by Section 3, ultimately defeating its purpose.
In the 20th century, the only notable invocation of Section 3 was when the House of Representatives refused to seat anti-war Socialist Victor Berger on the ludicrous theory that his opposition to World War I, which had led to his conviction under the notorious Espionage Act of 1917, amounted to insurrection. They eventually gave up after Milwaukee’s voters kept re-electing him anyway. After that, Section 3 wasn’t used again until 2022, when a New Mexico court removed a county commissioner who had stormed the Capitol on Jan. 6.
There are reasonable arguments about how and if Section 3 applies to Jan. 6 and to Trump in particular. Respected conservative legal scholars Will Baude and Michael Stokes Paulsen make a compelling case that Trump’s actions count as “insurrection or rebellion.” Others doubt that a riot lasting a few hours can be equated to a bloody, yearslong civil war. And some scholars argue Section 3 doesn’t apply to the presidency at all, though this is a minority view.
Given that Trump is currently all but assured the Republican nomination, these are very serious questions. Moreover, it’s not clear what happens next even if the former president is the constitutional equivalent of Robert E. Lee and Jefferson Davis. Uygur’s vanity campaign presents a similar dilemma, even if he isn’t going to end up anywhere close to the Oval Office. What if somebody is ineligible but the voters choose them anyway? Should voters even have that option?
It’s a problem courts and election administrators across the country are already grappling with. Uygur, plainly ineligible, and Trump, arguably disqualified, have something else in common. Both will almost certainly be able to appear on ballots regardless in at least some states, probably most states, and maybe even all 50. Thanks to the quirks of America’s patchwork of state election laws, you might be able to run for president even if the Constitution says you can’t be president.
This is admittedly a bizarre result. It seems self-evident that ineligible candidates, if they are in fact unable to hold office, shouldn’t be on the ballot. Baude and Paulsen, in their much-discussed paper arguing for Trump’s disqualification, essentially take this conclusion for granted, and many Trump critics have followed their lead. Several lawsuits have already been filed arguing the 14th Amendment directly compels this result, with others sure to follow.
But America’s system for electing presidents is unique, to put it mildly. State legislators, state and local election officials, state and federal courts, governors, members of the Electoral College, and Congress all play a role. In this complicated choreography of thousands of different actors, the Constitution is unhelpfully silent on who decides if a presidential candidate is eligible to be president.
In party nominating contests, state-run primary elections are technically just nonbinding advisory polls. Parties are free to decide how—or even if—they use the results to select the national convention delegates who then choose the party’s nominee. Most states hold presidential primaries, and both major parties incorporate these primaries into their respective nomination rules, but nothing requires either states or parties to do these things.
In the general election, members of the Electoral College (known as electors) are the real officeholders being chosen by the voters in November. In each state, each party nominates a group of would-be electors who are pledged—or in some cases required—to cast electoral votes for their party’s nominees. Presidential candidates and their running mates appear on the ballot only to indicate the corresponding slate of elector candidates. This is how every state has chosen to exercise its constitutional authority to appoint electors “in such Manner as the Legislature thereof may direct,” with only minor variations.
One of those variations is Nevada, where “None of These Candidates” appears on the ballot. Still, “nobody” can’t actually win an election in Nevada, as tempting as the outcome might be. Even if NOTC did take first place (it usually only gets 1 or 2 percent), the election would still go to the highest performing human being. But even though NOTC isn’t an eligible presidential candidate, Nevada is allowed to put it on the ballot as a protest option.
In both primaries and general elections, the process is almost entirely up to the states. There are few federal guardrails beyond general fundamental rights like free speech and equal protection. This state-level autonomy includes procedures for how candidates qualify for the ballot, how their ballot access can be challenged and how these disputes are resolved. But here, too, the relevant laws can be unhelpfully silent or ambiguous.
Whose Idea Was That?
There has never been a serious eligibility question before for any major presidential candidate, occasional conspiracy theories notwithstanding. But there is a long history of obviously ineligible people appearing on ballots as minor party candidates.
In 1984, activist Gloria La Riva was on the ballot in some states as the vice-presidential candidate of the Workers World Party. At the time she was only 30 years old, five years short of the Constitution’s minimum-age requirement. She also ran in 1988, still too young, before running in several later elections. In 2000 and 2004, Nicaraguan journalist Róger Calero was the presidential nominee of the Socialist Workers Party. Not only is Calero not a natural-born citizen, he is not a U.S. citizen at all, instead living in the country as a green card holder. Law professor Derek Muller, writing at the Election Law Blog, notes many other similar examples.
As Muller also explains, states have the option to deny ballot access to ineligible presidential candidates, and some states have. Because of these laws, Calero was replaced by his party with an eligible substitute in several states. States sometimes refuse to put ineligible candidates on the ballot if they have an applicable state law. But states are not required to judge presidential qualifications, and many states have no explicit rules about it.
When the 14th Amendment was adopted in 1868, ballot access in the modern sense didn’t exist. The system of official, standardized, government-printed ballots became widespread only in the late 19th and early 20th centuries. Before this, voters would typically vote with “party tickets,“ which were printed and distributed by the political parties with lists of their candidates. This legacy persists today when we speak of a candidate’s running mate being put “on the ticket.” With these do-it-yourself ballots, the government couldn’t stop anybody from voting for whomever they wanted. So there is little evidence to go on for the proper application of the original public meaning of Section 3 to modern voting methods.
In New Hampshire, Secretary of State David Scanlan brushed aside suggestions that he should keep Trump off the ballot in the first-in-the-nation primary. As he correctly noted, state law simply doesn’t give him that role. The declaration required of presidential candidates in New Hampshire does mention eligibility, but it is worded to cover only the age, citizenship and residency requirements in Article II of the Constitution. It doesn’t include possible disqualification as an insurrectionist under the 14th Amendment.
Most state legislatures simply weren’t thinking about this section when drafting their presidential election laws. To the degree there’s been any recent consideration of presidential qualifications, it’s been in the context of swatting down frivolous objections to the natural-born citizenship of candidates like Barack Obama and Ted Cruz.
Because of their unique complications, presidential elections are sometimes covered under a different chapter of state law than other elections, so some general state election rules might not apply. Some states have an eligibility requirement for general elections but not primary elections, or vice versa. Nationwide it’s a hodgepodge of different policies in each state, often poorly drafted if they exist at all.
So Who Does Decide?
The traditionally understood forum for presidential eligibility challenges is Congress, during the counting and certification of Electoral College results. Congress invoked this authority after the 1872 election when Horace Greeley, who’d lost in a landslide, died between election day and the meeting of the Electoral College. Some electors voted for alternative candidates, but a few still cast their ballots for Greeley. When Congress met, they reasoned that a dead person wasn’t eligible to become president, so Greeley’s votes were not counted.
In 1912, incumbent Vice President James Sherman died just a week before election day. His ticket had also lost in a landslide. But when his handful of electors met, they took their cue from the Greeley precedent and voted for an alternative nominal running mate for the defeated President William Howard Taft.
It’s easier to say a dead person can’t be elected than to determine the eligibility of a living person, but these two cases are the only real precedents we have in the Electoral College. The Sherman case suggests that electors could regard themselves as freed from their pledges—and maybe even state “binding laws”—if they insist the Constitution’s requirements take precedence and disqualify the candidate. And the Greeley precedent still stands for the general proposition that eligibility disputes fall within Congress’ purview.
The procedure for deceased candidates has since been altered by the ratification of the 20th Amendment in 1933. This amendment was mainly about moving the start of congressional and presidential terms from March to January, but it also covers the death of a president-elect.
Congress’ certification of Electoral College results was likewise modified in the aftermath of the 2020 election, when Congress adopted the Electoral Count Reform Act to overhaul and clarify its certification procedures. In general, ECRA limits the valid grounds for congressional objections to certifying electoral votes, increases reliance on the courts to resolve most state election disputes, and increases the number of cosponsors necessary for Congress to debate and vote on objections.
But while Congress is now (theoretically) bound to respect court decisions over state election results, ECRA preserves the role of Congress in deciding, among other things, if electoral votes have been cast for an ineligible candidate. Under normal circumstances, it is difficult to imagine Congress rejecting a candidate who has otherwise won the election. Any serious attempt would be, at the very least, a monumental political crisis. If Donald Trump wins the Electoral College in 2024 and on Jan. 6, 2025, substantial numbers in Congress believe the 14th Amendment disqualifies him from office, that crisis could arrive.
For those hoping to avoid such a no-win scenario, it would be much better to have the courts—preferably the Supreme Court—rule on the issue of Trump’s eligibility before voters go to the polls. But that can happen only if a state tries to keep a candidate off the ballot, which in turn can happen only if state law requires it.
Ideally, the states would have done a better job drafting their respective laws to address the issue. As a policy matter, states probably shouldn’t allow ineligible candidates on the ballot and should provide a clear legal process for making that determination. On the other hand, states might decide it’s not up to them, leaving it to the voters and, later, Congress.
In either case, state lawmakers should make the decision head-on by clarifying their desired policy in new legislation, not leaving it to implications and loopholes. As things currently stand, the existing lawsuits to remove Trump from state ballots may be decided on the ambiguity of what state law intends rather than the actual merits of the objection to Trump’s eligibility to serve as president under the 14th Amendment.
There is still time for states to clarify their laws for the 2024 election. In most states, the legislature will be back in session at some point before their respective presidential primaries. And in almost every state, there will be a session next year well in advance of the November general election.
If legislators want the courts to tackle the question of candidate eligibility under the 14th Amendment, they need to put the issue squarely before the courts in state law. The same goes if lawmakers think, not unreasonably, that ineligible naturalized citizens, noncitizens or underage presidential candidates are a misuse of the ballot.
This means state legislatures creating a constitutional eligibility requirement for presidential candidates seeking ballot access in both the primary (if the state holds one) and the general election. This eligibility requirement should explicitly include possible disqualification under the 14th Amendment. If this requirement were then successfully invoked against Trump, he could sue to challenge the decision, since under the First Amendment and Section 1 of the 14th Amendment, states can’t arbitrarily deny ballot access to otherwise qualified candidates. Trump could argue states don’t properly have the authority to keep him off the ballot, and he could also make the case he’s not actually disqualified under the 14th Amendment. These are questions voters as such would not have standing to make in federal court.
Hopefully, we’d then get a reasonable judicial analysis of how to interpret Section 3 of the 14th Amendment now and in the future, instead of forging a precedent amid the chaos of an extreme political crisis in Congress. The courts, including the Supreme Court, could consider the matter without ambiguities over whether state law even intends to deny ballot access on the basis of ineligibility under the 14th Amendment. Any ruling would still be extremely politically charged, no doubt, but it would be preferable to Congress’ handling it on Jan. 6, 2025. After all, following Jan. 6, 2021, there are very good reasons to get certification of the electoral count back to a routine, pro forma ceremony.
It’s a reasonable goal to get some kind of judicial decision prior to election day, rather than waiting for a possible post-election conflagration—or even worse, litigation after a disputed candidate has already been sworn in on Jan. 20, 2025. To get there, state lawmakers need to weigh in. Even if 14th Amendment challenges to Trump’s eligibility are ultimately unsuccessful (the likelier outcome), and even with Joe Biden sure to trounce Cenk Uygur, a bit of statutory housekeeping on this topic is long overdue. With the most powerful office in the world at stake, clarity is always preferable to ambiguity.
© The UnPopulist 2023