Just putting 2 and 2 together with what it looks like the SCOTUS is getting ready to rule, where we have in some states the concept of fetal personhood and states can’t keep off someone who is constitutionally unqualified off their state’s ballots, I would like to nominate a yet to be named fetus for president.
States have kept people off the ballots for eligability reasons, including the age requirement. The insurrection question is separate (or appears to be).
I feel like the “if a fetus is a person…” argument falls apart* when it’s applied to anything other than abortion.
*By falls apart, I mean the person is just going to ignore it. At best, you’ll get a generic ‘this is different’ answer. Go ahead, asking a pro-life/fetal personhood proponent if someone can vote when they’re less than 9 months from turning 18.
I don’t think the Constitution assigns any rights of citizens to people who weren’t born in the U.S. or naturalized.
Also, that would have to be a record-setting gestation period to meet the age requirement.
The insurrectionist disqualifier is problematic only because there’s disagreement on how it’s enforced and who has the power to do so. But were that resolved, it would exist as the other disqualifiers. (2/3 of Congress could cure this disqualification, a difference, but absent that, it would have the same effect as being 30 years old. You can’t hold presidential office.)
The constitution is pretty firm that unless you have undergone naturalization, you have to be born here, and there’s no telling where a fetus might be born, no matter where it is on election day.
I’m pretty sure every state requires national citizenship to be on a ballot in any election, not just presidential ones.
Who enforces the other requirements and who has the power to do so?
That’s the real question that the Supreme Court is considering right now.
The actual text of Article 2 reads:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States.
Obviously, it doesn’t matter if a fetus is a person; it fails three separate and distinct other provisions in that paragraph.
It’s well precedented that states may keep candidates off the ballot if they fail to meet Constitutional eligibility requirements such as minimum age or being a natural born citizen. The Hassan case that Gorsuch participated in that was cited by the Colorado court stands for the principle. In 1968, Eldridge Cleaver, running for President as the Peace and Freedom Party candidate, was kept off the ballot in several states for failing to meet the minimum age requirement. Likewise, in 1972, 31-year-old Socialist Workers Party presidential candidate Linda Jenness was excluded by state authorities from the Illinois ballot both for failure to sign a loyalty oath and because she was underage. A federal court found that the loyalty oath was unconstitutional but excluding Jenness based on her age was legitimate.
It’s currently well precedented. What prompts this thread is that the Supreme Court is currently hearing a case where they might decide that a state cannot keep a candidate off the ballot for failing to meet a Constitutional eligibility requirement.
I love that the argument being made in court is that if Trump is kept legally off the ballot for the trivial point that he acted illegally in fomenting an insurrection then other states may act illegally in keeping presidents off the ballot if they act legally so that’s why the Supremes shouldn’t rule against Trump. Usually people who say that things are Alice in Wonderland are wrong, but I think this qualifies.
Unfortunately for me, my position on this has from the beginning been that only people who have been convicted of an actual act of insurrection should be disqualified. Even though Trump’s lawyers are spouting their usual level of nonsense, the Court has no choice constitutionally.
Some states don’t, apparently, have have any mechanisms in place to prevent even a blatantly unqualified candidate from receiving that state’s electoral college votes. This something I was surprised to learn from the coverage of the recent SCOTUS oral arguments. From the transcripts (p. 128),
Ms. Stevenson is Shannon Stevenson, the Solicitor General of Colorado. I haven’t read the whole transcript, so I don’t know if she goes on to say which states these may be. And I don’t know if any are the same states that grant (or purport to grant) personhood to fetuses.
So at least in theory some such states could deliver their electoral votes to under-35s, non-citizens, and other unqualified beings, regardless of how SCOTUS decides the current case. The theoretical I heard about was was Elon Musk, who, being South African by birth, is not a natural-born citizen of the USA but who might nevertheless someday receive electoral votes this way. I think I’d almost prefer a fetal president to President Musk.
It would be a truly radical decision that found that states not only may not keep a candidate off the ballot for 14th Amendment reasons, but also may not ban them for being underage or foreign born. But maybe I’m too complacent.
AIUI that’s actually got blurry edges; the language is “natural born citizen” and the child of citizen parents who is born outside the country because the mother’s there temporarily has been considered, in at least a couple of cases, to qualify.
So for the fetus of parents who aren’t citizens, you’re right; but for the fetus of parents who are citizens (I can’t remember whether it has to be both parents or just one), it probably doesn’t matter where the child’s born as long as they spend at least 14 years in the country. Which in itself would disqualify a fetus, of course.
I think it’s highly unlikely that the Court will rule that there’s no mechanism whatsoever for preventing someone ineligible for taking office; though at least theoretically possible that they’d say it’s entirely up to the parties who can be on a primary ballot.
My impression from listening to the pundits is that absent any ambiguity or controversy regarding the existence of a disqualification (e.g., you’re either 35 or older, or you’re not), there’s two ways that would play out. For states that have the mechanisms and existing law to do so, you’re off the ballot in the primary and/or general election per the states’ authority.
In states where that does not exist, and where they submit electoral votes for an unambiguously disqualified candidate, those votes would not be accepted at the Federal level. IOW, the votes wouldn’t count, they’d be pointless.
This bit assumes a functioning, sane, uncorrupted Congress—admittedly a naive assumption—though even without one, undoubtedly accepting such votes would end up in the courts.
Again, the issue with the 14th as a disqualifier is not that it lacks the force to bounce someone; rather, it’s that no two people can seem to agree who decides someone was an insurrectionist and who enforces it.
I know-- I goofed-- I was writing the qualifications for voting, not for running for president.
Naturalized citizens can’t run for president, but they can vote.
I will bet that SCOTUS doesnt not decide that, but insteads takes the cop-out but correct position that since trump has not been convicted yet- “innocent until proven guilty”.