Secretaries of state and other officials who determine ballot access make findings of fact relating to ballot eligibility all the time. Are you an American citizen? Do you live in the appropriate district? Do you meet age requirements? Are you barred by any criminal convictions? Have you filed the appropriate number of signatures to meet filing requirements?
Why are the requirements of the 14th Amendment any different? The officials who determine ballot access make the first determination, and if there is a dispute, it goes to the courts.
I’ve given this example before. What if I file the necessary documents to get on the presidential ballot in North Dakota, and the Sec State says, “Mr Piper, I think you’re ineligible to run for President. I’m not putting you on the ballot, because you don’t meet the requirements of Article II, Section 1, Clause 5 of the Constitution.”
The SecState would be making findings of fact (Piper is not a natural born citizen and not 14 years a resident in the United States). The SecState would then use those facts to make a legal determination of ineligibility, and not put me on the ballot.
If the Sec State of North Dakota can make findings of fact and determinations of constitutional eligibility under Article II of the Constitution, why not under the 14th Amendment?
They would be preliminary rulings, and I could then go to court over it, but the point I’m trying to make is that administrative decision-makers make findings of fact and legal interpretations all the time. Their decisions will be subject to judicial review, but administrative decision-makers cannot ignore the Constitution or state laws in carrying out their duties.
I double whether Republican partisans can make such a distinction. Some of them will run elections one day as Secretaries of State. The hope is that court systems can differentiate. In the end though, democracy depends upon a norm of democratic forbearance. Cite: How Democracies Die - Wikipedia
Positive developments in the proper direction include passage of the bipartisan Electoral Count Reform and Presidential Transition Improvement Act of 2022, passed in 12/2022.
They would be preliminary rulings, and I could then go to court over it, but the point I’m trying to make is that administrative decision-makers make findings of fact and legal interpretations all the time. Their decisions will be subject to judicial review, but administrative decision-makers cannot ignore the Constitution or state laws in carrying out their duties.
I understand the Arizona Secretary of State (SOS) referenced a decision by Arizona’s state supreme court when declining to apply Section 3 of the 14th amendment.
Overall though, there’s a distinction between no-brainer decisions like, “Is Candidate X over the age of 35?” and “Did Candidate X, who never held a rifle or trespassed on the capital, engage in insurrection?” IMHO, the latter has to be decided by tribunal, especially in higher office cases. I use an intentionally broad term, partly because the term tribunal was used around the time of the 14th amendment. One problem is that if I understand it correctly, Congress never passed legislation clarifying Section 3 procedures, much to the dismay of Thadeus Stevens.
If Trump pleas guilty or is convicted in the Georgia case, then I suspect we are in the no-brainer region that could be decided by a SOS, albeit again with court review. But I don’t perceive plea or conviction as a necessary condition.
So if the 14th Amendment needs a judicial determination, that means that if Robert E Lee had been nominated for his local House of Reps seat in Virginia in 1866, the Virginia official in charge of nominations would have had to accept the nomination and let Lee run?
No, Lee’s candidacy would have fallen under the no brainer exemption. If there was confederate traitor whose support entirely consisted of aid and comfort, a tribunal of some sort would have been appropriate. (Again, the court system counts as a tribunal.)
Say Trump is convicted by Smith for starting an insurrection. He gets only a misdemeanor and that gets him a parole sentence. This he gets by saying “I did not think it would go that far.”
Is there anything at the federal level that can be done at that point to get him off the ballot? After all, the Supreme Court interfered with the Bush vote count in Florida.
First, @Atamasama is correct, Smith may end up laying charges, but he isn’t making the final determination of the sentence. But, not fighting the hypothetical, if Trump got a misdemeanor for Insurrection (your phrase) then, yeah, by a clear reading of the 14th, “shall have engaged in insurrection” whether or not he was given a stern talking too, fined, or thrown in jail. So the current ambivalence would likely be gone and while there would be tons of likely appeals, even this SCOTUS would likely rule against him.
Because again, not fighting your hypothetical, he’s been convicted and sentenced for a crime that clearly falls within the scope. Most of the arguments about these efforts via the 14th is how do we determine what is and is not insurrection - and I’m largely in agreement that a court finding is a valid way to do so. I think in any -rational- world, everyone would look at what happened, watch the footage a few times, look at the results and the refusal of Trump to tell his rabid followers to stand down until after the fact and say “Yup.” Of course in a rational world it wouldn’t have happened, or Congress would have impeached his ass as a sign that some shit is NOT acceptable, but, well, not a rational world at all.
That’s one of those awkward terms of art in ConLaw.
“Impeached” sounds like it ought to mean “tried and convicted”. But it really means something close to “indicted”.
Be nice if we had better terms for all the phases from accused to indicted to tried with no verdict to tried and convicted or to tried and not convicted.
Fine, mea culpa, sloppy use of the language. I correct myself, “Congress would have not only impeached his ass as a sign that some shit is NOT acceptable, but removed him from that and any future office”.
But most lay citizens think “impeached” means tried and convicted. And they ought to be correct. There ought (that pesky word again) be a simple one word term that means just that.
Granted they totally allowed a challenge once he was the candidate, just didn’t disqualify Trump from being on the -primary- ballot.
Note to self: apparently I can (in MN) at least, put anything or anyone on the primary ballot. Quick, lets have some dead people, animals, and international citizens run!
Hope this isn’t off topic but if the Dems think they have the votes or more evidence, can they try to impeach Trump again for the same thing? Or does double jeopardy apply?
Here is my question on standing. Why couldn’t someone run in the Republican primary in just their state then sue to keep Trump off the ballot since it causes injury to have an ineligible person getting votes in the election.