[Note: This is the eighth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first seven essays can be found here, here, here, here, here, here and here.]
Another quasi-jurisdictional objection that has been made to the state ballot access litigation in particular is the argument that it is too soon to decide whether Donald Trump is eligible to the Presidency. Though it is not always labeled this way, this amounts to a sort of “ripeness” argument – that the Section Three question is simply not ripe for decision at this stage and in this posture. The timing argument was made at length in an early amicus brief by Senator Steve Daines and the National Republican Senatorial Committee, and has since been picked up in part by Trump’s merits brief.
The core of the argument is that Trump cannot be excluded from a state ballot (whether in the primary or general election): (A) because Section Three only prohibits “hold[ing] . . . office,” not running for office, and (B) because Congress has the power, by a two-thirds vote of both houses, to remove the Section Three disability, it is possible that by the time of office-holding (or even later), Donald Trump might become eligible to hold office, even if he is currently ineligible to hold office because of having engaged in insurrection. (Indeed, Trump’s reply brief argues (at 22-23) that the clock should be held open “between now and January 20, 2029”!)
But this objection misunderstands the nature of ballot access as well as the nature of Section Three.
To start off, it is true that Section Three does not of its own force regulate ballot access. It applies to “hold[ing] . . . office,” not running for office. But so what? As we discuss at length in our original manuscript, The Sweep and Force of Section Three, Section Three simply provides a rule of decision that governs anybody whose official duties call upon them to make decisions about eligibility. That can include election officials responsible for creating, distributing, and counting ballots, if state law so provides. And according to the Colorado Supreme Court, the authoritative expositor of Colorado law, Colorado’s legislature has provided for the exclusion from the presidential primary ballot of those who are not eligible to serve as President. In other words, Section Three makes clear that Trump cannot hold the office of President. And state law provides that those who cannot hold the office of President should not be on the ballot as presidential candidates.
This state authority is well-established. Article II of the Constitution says that presidential electors shall be appointed “in such Manner as the Legislature thereof may direct.” And cases have uncontroversially held, for example, that a state may lawfully a exclude a 27-year-old from the presidential primary ballot, and may lawfully exclude a non-natural-born citizen from the general presidential election ballot. Insurrectionists disqualified by Section Three are no different.
Proponents of this argument claim that Section Three is different because of the amnesty clause: “But Congress may by a vote of two-thirds of each House, remove such disability.” This is alleged to make it uncertain whether Trump or anybody else covered by Section Three will still be disqualified in November or January. But what difference does it make? Trump, and others covered by Section Three are disqualified now. (Congress can chose to “remove such disability” only because that disability already exists – here and now.)
Similarly, in theory the 27-year-old and the non-natural-born citizen candidates might also become eligible, if Congress were to propose and the states were to ratify a constitutional amendment. But it has never been seriously suggested that we should not enforce these legal requirements now because they might change in the future. Indeed, in Trump’s reply brief he concedes (in n.36) that these questions “obviously must be assessed under the Constitution as it currently exists.” Under the Constitution as it currently exists, Trump is not eligible to “hold any office, civil or military, under the United States, or under any State.” Now is as good a time as any to say so.
With respect, what seems to have given this argument “legs,” in our view, is not so much its dubious legal merits as its supposed political expediency. The argument is seen to offer the Court an “off ramp” that would allow it to reverse the Colorado Supreme Court, ruling in favor of Trump, but without accepting any of his various (unacceptable) arguments about Section Three. Somehow, this is thought to be a politically preferable alternative to a straightforward affirmance or reversal on the merits.
Our specialty is law, not politics, but the political merits of this approach are hard for us to understand. If the Court rules that it is too soon to adjudicate Trump’s qualifications for the office he seeks, when will it be time? In November, when most presidential election votes are cast? In December, when the electors meet? In January when the electoral votes are counted in joint session? On Inauguration Day? Each of these options seems riskier and riskier. Far from a convenient “off ramp” (or leisurely rest stop), it looks to us like a formula for a chain-reaction massive multi-car pileup. It would seem safer to us to keep one’s eyes on the road.
Law students quickly learn that procrastinating their seminar papers until the day before the due date does not make them any easier to write. And it does nobody any favors for a major contested election to proceed under a cloud of uncertainty. Donald Trump wants to be the President of the United States in 2025. Others believe that Section Three of the Constitution forbids him from holding that office. There is no logical or legal reason not to determine and decide who is right – before the heat of the general election campaign, if possible – rather than waiting for some imagined future day when the questions will somehow become easier or go away.