If a state rules that Trump (or any presidential candidate, for that matter) cannot be on the ballot, can voters in that state still write in that candidate? I would argue yes, since the qualifications to be president are stated in the US Constitution, and cannot be overridden by any one state’s constitution or any one state’s executive branch, legislature or judicial system. I think that disqualification of any candidate has to be done at the federal level, and, like it or not, by the Supreme Court, since it involves the interpretation of the 14th amendment. A problem with that amendment is that it provides no provision for its enforcement. I think the only way to enforce it is by filing a suit that would ultimately make its way to SCOTUS. The suit would not be that the candidate be kept off the ballot, but that the electoral votes of the states cannot be cast for the candidate.
If Trump isn’t on the primary ballot in enough states he won’t be the Republican candidate, and therefore, won’t be on the general election ballot at all.
He could run as an independent, but that’s the easiest way for Biden to win. Trump will siphon a lot of votes from the Republican, and while the Republican candidate may pick up independents who would have voted for Biden against Trump, it won’t be enough to make up for the loss.
Not to mention that states who kept him off the primary ballot will probably not have him as an independent.
I’m a registered Democrat, but in Indiana, you have to declare your party at the polls no earlier, and it doesn’t have to be the same party you voted for the last time. I’ve crossed over to vote against Republicans who particularly scared. I might do it again to vote against Trump this spring.
And to the poster who noted that voters don’t always understand the difference is so right. I have worked the polls for years, and when people are asked their party at the primary, so the machine can be set to the correct ballot, these people announce they are “Independent,” and get huffy when we tell them they have to declare one or the other for this election. We get reminded that this is America, and you can vote for anyone you want, and we have to explain that this is not a national election-- the state is merely accommodating the two major parties in holding their primaries. Other parties rarely need elections to establish their candidate, although they could, and I’m sure the precinct committeemen would love have extra people from third parties working, considering how hard it is to get poll workers.
In California we always have other things on the ballot besides the party primaries so there are independent (we call it non-partisan) ballots. All of the minor parties have primary ballots too so you can get a Green or Libertarian ballot or one from the American Independent Party who aren’t really independent.
We have semi-open primaries. Non-partisan voters can choose a ballot for a political party if that party grants permission for non-partisan voters. Republicans have not granted permission. Democrats and a couple minor parties have.
1860, right?
Although the practice of states printing names on ballots is relatively recent, and didn’t apply back then. Parties generated ballots, and citizens could even write their own, in theory. But they had to know the name of the electors they should vote for (which is why the party normally handled that). In most Southern states there weren’t any electors that would pledge to Lincoln (for obvious reasons) so there was no legal way to vote for him.
The point here is that our “modern” election system is not really very modern at all. And most (all?) of the Constitution, including the 14th amendment, were written to guide a system that is almost nothing like what we actually use today.
Binding convention delegates via primaries, women voting, direct election of Senators… almost nothing is the same as it was back then.
In some states, in order for write-in votes to be counted at all, a candidate has to register as a write-in candidate. Presumably this is easier than getting a regular spot on the ballot, but you still have to do something, and presumably the same government office that keeps someone off of the ballot would also keep them from being an official write-in candidate.
Of course, there are also states without that requirement. I imagine that, in those states, the official totals include some number for Mickey Mouse and so on.
Found my own answer
https://constitutioncenter.org/blog/who-controls-primary-elections-and-who-gets-to-vote
It seems they ruled the parties couldn’t do it fairly themselves.
I couldn’t care less about 3rd party no-hopers, you’re the one that brought up this irrelevancy. Your argument is that because there’s no consistent federal procedure for the admission of irrelevant no-hopers to the ballot across all states, it is therefore perfectly fine that there is no consistent federal procedure for 14A disqualification for Trump or Biden. I find that unconvincing. An inconsistent eligibility system among states is flawed in both cases, but the flaws are not exposed as a risk to democracy until there are serious consequences.
All correct IMO / IME. Continuing on from there …
Considering the primary election first …
If some candidate is refused access to the primary ballot in some state, the voters can certainly write them in. Who can stop the individual voters? Whether that party’s rules permit them to count those votes or not is a different matter. Good bet that differs between all the states and all the parties.
Even assuming the votes will be counted it’s a nearly foregone conclusion that many fewer voters will bother to write in e.g. trump than would have voted for e.g. trump if his name was pre-printed. The net effect is to handicap the omitted candidate in the race to be that state’s chosen winner to take to the national party convention.
As to the general election the handicap effect is even bigger.
Maine general election ballots do not mention electors:
So I would think that the same logic used to deny Trump a place on the Maine primary ballot should apply to the general election if SCOTUS approves the Maine primary election ballot.
Normally, because of unusual rules, Maine gives one electoral vote to the GOP candidate and three to the Democrat. But if the only candidates on the official ballot were Biden, Kennedy, West, and a libertarian, I’m pretty sure Biden would sweep the state.
It is no longer the case that as Maine goes, so goes the nation. But I wonder if there are realistic scenarios where that one electoral vote could give the election to Biden.
Section 5 of the 14th amendment says
So your statement is inaccurate.
Here, though, the congress hasn’t acted. Will the Suprmees use that as an argument that no state can render a person ineligible due to insurrection, as it’s not in their domain? I imagine it’s a possibility.
I did so because you were apparently unaware that the U.S. does not have a system where a candidate has to be on each state’s ballot. It’s not unprecedented at all
And, as was noted upthread, there is no difference between a “major party” candidate and these so -called 3rd party no-hopers. The Republicans were once an upstart third party. The whigs were once a major political force. Things changed, and it wasn’t a political crisis when it happened.
You keep saying that this is a threat to democracy, but haven’t explained why. If a person isn’t on enough state ballots, their shot at being elected is greatly reduced, and so that’s a reason for a party not to make them their nominee.
If your claim is based on the risk that the Republicans will ignore the rule of law, and therefore remove democratic candidates from the ballot too, I’d have two responses:
First, they’d have to do so in court. Their efforts at getting a court to rule that the 2020 election was stolen reflects how well that might work.
Worse case, and if there is a groundswell of support for kicking democrats off the ballots, then the democrats become an outdated party that joins other in the ash heap of history. This country can, and would, develop a new political party that the people favor, who can nominate candidates.
The U.S. doesn’t have a national election for president. It has 50 state elections. It’s not what you have in mind, but it doesn’t reflect some sort of problem with how the government was set up.
How one earth could I not be aware of it? That flawed system is the entire problem that’s creating the current clusterfuck. That’s what this entire thread is about.
Of course it’s a problem with how the government was set up. The fact that states have so much power over elections is what has allowed partisan officials in Republican states to implement voter suppression and gerrymandering on a massive scale to undermine democracy.
I stand corrected. That will teach me not to comment on the Constitution before checking it. I see that Section 5 permits Congress to enact laws to enforce the provisions of the 14th but does not require it. Congress could now (in theory) pass laws by which Trump’s actions surrounding Jan. 6 would disqualify him from office. However, unless there are already such laws on the books, I don’t think Congress itself can do anything since ex post facto laws are prohibited. If Jack Smith had been more aggressive and indicted Trump for insurrection and not just conspiring to obstruct and disenfranchise, there might have been a chance of applying the 14th without any act of Congress if Trump were found guilty, although I don’t know what laws on the books would apply. There would need to be a legal definition of insurrection or rebellion somewhere. I think the lack of such a definition may be part of the reason why Smith didn’t go that far.
Never mind, off topic
So what was the point of this post?
So you asked the question when you knew the answer was “often”? I’m confused by the point you were making.
I don’t think it would be ex post facto to pass a law now that says that a person is ineligible for a future election. (And the prohibition against insurrection was already on the books, in the form of the amendment).
But, like many many things, there is almost certainly no political will to pass such a law. Some of course will complain that this is a problem with the American constitutional system. On the other hand, it is a stop against rogue, regional interests undermining the entire operation (and, as a result, may indeed reflect the genius of the constitution - a political party, even one as widespread as the democrats or republicans, simply can’t usurp the democrat process by outlawing politicians they don’t approve of)
Obviously this CAN happen because it’s happening right now. I was asking for significant examples of when it has happened in the past, because the argument that “it has always been this way so it’s fine” does not hold up if it is simply never happened before that a major party candidate for the presidency has been excluded on 14A grounds in some states but not others. The answer to that question is not “often”.
It’s like saying “our car is just fine without brakes” when you have never encountered a downhill yet. The system was always flawed, but the potentially dire consequences of the flaws have never been exposed until now.
Yet, when provided examples, you said they were irrelevant.
Well, that’s a different question than asking when, in the 250+ years of the country, has a candidate appeared on one state’s ballot but not others.
I definitely agree that the 14th hasn’t been invoked before.
No, that’s bad analogy.
The fact that each state has its own election process is by design. And, as a result, it is not unusual for a candidate to be on one or more, but not all, state ballots.
Now, though, you are claiming it’s a flaw because this particular reason for not being on the ballot has not happened before.
That’s like freaking out about somebody wanting to drive their car on the highway because it’s only been used in city streets. When others tell you that cars can, and do, go on the highway, you respond with “oh yeah? When has a car ever driven for over an hour without stopping.”
I reply with “lots of times.” But since those cars were not driving on actual highway roads, you claim they are irrelevant examples. “It doesn’t matter if there are cars that drive on long stretches of road without stopping. That has nothing to do with being on a highway. This is a problem that nobody is worried about.”
It’s not a problem. It happens. It has happened.
Candidates who have wanted to run for office have, at times, but unable to get onto each state ballot. Just because it wasn’t according to the specific provision of the 14th amendment, or didn’t apply to a Republican, doesn’t mean that we are in chaos mode if somebody is on some, but not all, state ballots. Even if that person is a Republican who is denied pursuant to the 14th amendment.
What part of the context led you to believe I was asking about insignificant examples with no political consequences?
You seem to have a problem distinguishing is from ought. Many Americans seem to think the same way, as though when something is in the Constitution it is immune from examination on its merits, and conversely assuming that if I’m criticizing something I could not possibly know that it’s a feature of the Constitution.
Of course I know it is designed this way. The design is stupid, and it practice in many states it is utterly corrupt.
Well, you’re right in that there’s no chance such a law could get passed now. I think it would be still ex post facto because it would be prohibiting Trump from being a candidate in the future based on his actions in the past, but that’s splitting hairs. And yes, you’re right that the prohibition against insurrection is already on the books, but who would determine that what happened on Jan. 6 was in fact an attempted insurrection and not just “merely” a violent riot? (One thing’s for sure: it was not a field trip or a peaceful protest.) Insurrection implies an attempt to overthrow a government, not just interference with official proceedings, however violent that interference is. If the events of Jan 6 had instead happened after Biden’s inauguration, then it would have been insurrection, clear and simple.
What leads you to believe that my examples were “insignificant” and had “no political consequences”?
I mean, I would think it self evident that the removal of a political candidate from a ballot has political consequences.
And I remind you again that parties have come and gone, so it’s really weak to state that some candidate, or parties, are insignificant. Were the Republicans insignificant in 1860? When did the Whigs become insignificant?
Why? This nation has always been a union of states; why is it stupid for those states to have sovereignty over their elections? (To be clear, the 14th amendment curtailed that sovereignty, and I’m very glad it did. But that doesn’t mean that the states have given up all authority over their elections, or even most of it. Civil rights should be protected at the federal level, but that doesn’t mean that all government operations must also derive from that level).
What is utterly corrupt? It can’t be that you’re talking about the removal of candidates - per you, that only happens to insignificant candidates and has no political consequences.
Or are you saying that since some states have a corrupt government then no state should be its own sovereign entity?
I mean, this country has had a litany of bad governors in it’s history. Why not scrap that whole “state government” thing, too? And with all of the excesses of capitalism, maybe the concept of private property rights should be scrapped, too.
Sure, you’re looking at the constitution anew. But just because the system isn’t flawless doesn’t mean it’s fundamentals aren’t sound.