Most people who comment on whether Section 3 of the 14th Amendment disqualifies Donald Trump from the office of President again approach the issue as a question of constitutional law. But as the issue emerges and is debated, it also raises a number 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 by focusing on the issues underlying the electoral law. (Anderson Burdick whoever?)
On the election law blog, Derek Muller published a post examining the report on Trump’s merits Trump vs. Anderson, noting that no matter what the Court does about Trump and the 2024 election, the case has “the potential to be the most significant election access case of the past 30 years.” Furthermore, even if Trump has not taken an interest in election law issues, Muller suggests that election law doctrines may offer more support to Trump’s position (at least in the position where Trump vs. Anderson arises) with respect to the constitutional claims it is trying to advance.
It seems increasingly likely to me that if the Supreme Court rules in Trump’s favor (and if so, the likelihood seems diminishing), it will be on the basis of an election law relating to voting access rather than on a substantive analysis of the Section 3.
If you go back and see how Madison Cawthorn and Marjorie Taylor Greene navigated their eligibility challenges in 2022, it was a very different strategy. The original challenges, citing Section 3, were filed in state court. The defendants then went on the offensive. They filed side cases in federal court; they achieved some delays and temporary victories; have secured favorable opinions from appellate court judges who have leaned on some of their arguments on election law questions about the power of Congress to judge the qualifications of its members, exactly the kind of election law question that constitutes a threshold for any substantive Section 3 analysis.
Trump, however, has handled the cases very defensively. He has never brought collateral proceedings in federal court on election law issues. He is largely determined to frame the case along the lines in which the plaintiffs have framed it, as a constitutional law case under Section 3. . . .
It would seem that this significant dispute over election access would draw much more attention to election law. But is not so. Indeed, very few election law scholars have considered the amicus briefs, and those that have supported neither party, reflecting some hesitation, to some extent, and some questions about the underlying merits. (Disclosure: I’m one of them.) [Here is Muller’s brief.]
But I want to focus on Trump’s arguments in the substantive brief. And I think it seems increasingly likely (at least in my judgment) that, although this case was not primarily argued as an election law case, it could end up this way, Self the court is inclined to rule in favor of Trump. But if you don’t go in that direction. I think it will be very difficult for Trump to succeed on the merits, and it seems increasingly likely that the Court will find that he could be barred from voting on the merits of Section 3. Indeed, as I watch the litigation unfold, my sense today is that the chances of Trump’s success rates are lower than ever.
According to Muller, 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 vs. Anderson next week.
Post-Script: I haven’t hidden my feelings about Trump, and those feelings haven’t changed. I did not support his election in 2016 or his re-election in 2020. I believe he should have been convicted and disqualified from future office following his impeachment (either), and I do not believe there is any constitutional obstacle to the ” late impeachment.” And I would like to see him disappear entirely from the political life of our nation. However I am not (yet) convinced that he is again disqualified from office under Section 3, and I am quite skeptical that Section 3 prevents him from appearing on the ballot paper.