Most folks commenting on whether Section 3 of the 14th Amendment disqualifies Donald Trump from serving as President again approach the question as a constitutional law question. But as the question is emerging, and is being litigated, it also raises a range of traditional election law questions, such as when and whether candidates for federal office can or should be removed from the ballot under federal or state law and the like, even if few or focusing on the underlying election law issues. (Anderson-Burdick anyone?)
Over on the Election Law Blog, Derek Muller has a post examining Trump’s merits brief in Trump v. Anderson, noting that, whatever the Court does with regard to Trump and the 2024 election, the case has “the potential to be the most significant ballot access case in over 30 years.” Moreover, while Trump has not leaned into the election law questions, Muller suggests that election law doctrines may offer more support for Trump’s position (at least in the posture in which Trump v. Anderson arises) than the constitutional claims he is trying to make.
As Muller sees it, most of the arguments presented in Trump’s brief do not have much force, but we will see how the justices respond when the Court hears oral arguments in Trump v. Anderson this coming week.
Post-Script: I have made no secret of my feelings about Trump, and those feelings have not changed. I did not support his election in 2016 or his reelection in 2020. I believe he should have been convicted and disqualified from holding future office after his impeachment (either one), and do not believe there is any constitutional bar on “late impeachment.” And I would love to seem his disappear from our nation’s political life altogether. I am nonetheless not (yet) convinced that he is disqualified from holding office again under Section 3, and I am quite skeptical that Section 3 bars him from appearing on the ballot.