I will go further and say that, in business terms, these attorneys have staked out a marketing position where they are now branded as the “experts” in this Brand New field of law. TV appearances, consulting fees, and ‘expert testimony’ in potential cases are now theirs for the taking.
Effectively, they have created a new market. Of course, entry costs are… relatively… low, so they should expect competitive pressures within a year or so, but for now, ka-ching! (If they want it, of course.)
They’ve been joined in their positron by Laurence Tribe and Michael Luttig who published an article in The Atlantic making their own case that trump is ineligible for office.
One free article a month. I couldn’t find a completely non-paywall source.
At the time of the January 6 attack, most Democrats and key Republicans described it as an insurrection for which Trump bore responsibility. We believe that any disinterested observer who witnessed that bloody assault on the temple of our democracy, and anyone who learns about the many failed schemes to bloodlessly overturn the election before that, would have to come to the same conclusion. The only intellectually honest way to disagree is not to deny that the event is what the Constitution refers to as “insurrection” or “rebellion,” but to deny that the insurrection or rebellion matters. Such is to treat the Constitution of the United States as unworthy of preservation and protection.
Yes. And then the candidate can go to federal court and ask for relief because there’s no proof they were involved in an insurrection. A couple of these lawyers stated just that on CNN yesterday. According to them every citizen has standing to bring such a suit against any election official denying the validity of a candidate. And, as they also stated, it will end up as a matter for the Supreme Court to decide. And that means a disaster as any citizen can object to the approval of any candidate by any election official. If anyone objects to Trump running then anyone can just as easily object to Biden running, or anyone else. The SCOTUS will have to establish some law to determine the grounds for disqualifying candidates on this basis. Taking an oath to traitorous organization or wearing an enemy uniform might do the trick, but short of that a conviction for some crime will surely be necessary.
It’s possible for a candidate to win the election but then be disqualified based on a conviction or other standard and still not be eligible for office. How on earth are we to deal with that?
There is still the hurdle of objective truth to clear before it goes from complaining that a candidate is ineligible to actually having a hearing in earnest to decide the matter. How many conspiracy theorists, trump chief among them, argued that Obama wasn’t eligible to run because he was not born in the United States? We never had to go so far as the county commissioner’s office, much less the Supreme Court to decide that was just plainly not true.
Do you think this was a poorly, vaguely worded law that needs to be clarified? I do. I think half the Constitution needs revision and clarification, and I think Trump has shown some of its weaker points.
They seem pretty positive. But again, this is just talk. Useful talk, but unless someone uses this as legal ammo (so to speak) in court it’s just a thought exercise. I’m not trying to be negative, and thank you for sharing it.
I don’t recall any official denying Obama’s right to be on the ballot. According to these lawyers any citizen could have sued an official to keep him off the ballot but the evidence was actually non-existent. It’s different with Trump, but I still don’t think any election officials will deny his applications and if they did if would start the snowball down the hill.
From the Atlantic article:
Agreed. And then they should vote for someone other than Donald Trump.
But I don’t think there is any other good mechanism for preventing him from being the next president.
What if he wins with write-ins? This may sound impossible, but local write-ins have succeeded. And some voters would write-in Trump because of not liking him having been taken off of the ballot.
I disagree. I think we’ll see multiple objections from several citizen and political action groups that could go from local election officials all the way to the Supreme Court. I’m a bit more skeptical that any state officials will, on their own with no prompting, move to bar trump from the ballot. But in response to citizen complaints or demands? Absolutely, I think they will.
As to the snowball effect of future ballot disqualifications in retaliation… eh, maybe. I agree there will be a lot of crying and posturing and gnashing of teeth (much as the Insurrection Caucus is doing now about impeaching Biden, but even wishy-washy McCarthy won’t go that far without real justification), but if there’s no there there it will just be sound and fury, signifying nothing.
Is there any state where it’s possible to be a write-in candidate for president without filing papers? In the alternate universe where Donald Trump was being denied a space on the ballot because of the 14th Amendment, the same authorities would presumably be empowered to deny him registration as a write-in candidate.
I know there are some states that normally allow write-in votes without registration, but presidential elections inherently work on the basis of the candidate registering in advance with a list of electors. (I guess I shouldn’t count out the possibility that there’s a state so committed to the American oddity of write-in votes that they let you write in the electors too.)
I was thinking about primary write-ins It truly is an alternate universe where the GOP ticket is stricken from November ballots. What happens to the VP?
P.S. If Trump is stricken from primary ballots, how does that work in caucus states?
I agree with you there. If it is going to be done it needs to be done during the primary phase. While I think trump would be just as ineligible to run during the general election phase it would just be a step too far to disqualify him then and leave no Republican nominee at all. (I’d delight in it, and throw a party, but it would still be untimely, in my opinion.)
You can write in anybody on a ballot in New York State. The person you write in doesn’t need to be running, or to know you’re going to write them in, or anything else about it. My 2020 sample ballot includes a write-in line for POTUS, just the same as for anybody else.
I haven’t the faintest idea how this would work with the Electoral College. I don’t expect they’ve ever had a write-in come anywhere remotely near winning on that line.
Of course, when there’s no campaign being run by anyone (even if not the candidate), write ins are highly unlikely to include enough for the same person to amount to anything; they’re basically a protest vote. [ETA: also true when it’s a minor party candidate who didn’t qualify for the ballot, even if there is some coordinated campaigning.]
The only case I know of a write-in candidate winning was for a local election, in which the incumbent had been charged with a crime involving his office but it was too late to change the ballots. The other party had no candidate on that line (fairly common around here for local offices.) His own party decided rapidly on an alternative candidate and publicized this all over the area as much as they could. The alternative won; the previous incumbent was eventually convicted.
Should Trump win this will come down to his ability to become president. Just as if it is found he was not born a natural citizen of the US. He cannot be president if if he was engaged in rebellion or insurrection or given aid or comfort to those who have. The SCOTUS would have to decide if he could then take the oath, and then whatever happens in our faulty system if they decide he can’t.
There’ve been two US Senators elected by write-in votes: Strom Thurmond in 1954 and Lisa Murkowski in 2010.
Primaries are private party elections. No different than electing the president of a garden club. Striking him from a primary will result in a victory for him in state court without consideration of the constitution. It’s different if he’s put on the ballot by a state for any reason, even running as an independent. I don’t know if it’s better for this happen sooner rather than later because the amendment is about holding office, not elections.
What is the process if a major party decides to nominate someone who is ineligible to hold office but gets elected?
Say the Dems nominated AOC in 2020 and she won the election. Who gets to decide that she’s too young to hold the office of POTUS? What if the Dems argue “Yeah, but the will of the people!!”
Same if the GOP nominates Arnold Schwartzennegger.
If this goes to the SC, can’t they just rule “The people decided to violate the constitution, so who are we to overrule them”? More to the point, where does this case get filed on a lower level before it reaches the SC?
They could boot any case that comes before them if they want. This case gets filed in federal court. Despite affecting state officials, it’s a constitutional matter. According to the conservative lawyers it’s a federal matter and any citizen has standing to bring the case. Starting in a state court will just delay the process I think. That is unless some state constitutions contain a similar restriction which can be enforced at the state level, but then would likely become the issue of a federal case of it’s own.
I would imagine that a citizen’s group will petition the state Attorney General, who may or may not agree that trump cannot be on that state’s ballot, but whichever way he or she decides it will be challenged by the other side. After that a local judge, then a state judge, state Supreme Court, district Court, and eventually the Supreme Court. Hopefully all of this can happen quickly. Before primaries, ideally, so Republicans can choose their nominee without trump in the mix. It would be much messier after a candidate is chosen, because it will likely be trump and then we’d have a whole new level of trouble if they have to come up with a different candidate. How? Primaries are over. Second place? Original candidate’s running mate? Have another primary?
Yeah, if they’re going to challenge trump’s eligibility (and i think they should, absolutely) they need to do it soon. It just seems like even the Republicans who think he is unfit are all waiting for someone or something else to bring him down so they aren’t implicated in his downfall.
By whom?