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A case for business as usual
States are responsible for administering all elections, including federal ones. With that responsibility comes considerable power: States have authority over voter registration, on where and when certain elections take place, and they even have a say in who gets to be on the ballot.
State officials routinely vet candidates and disqualify ineligible ones from running for office. This is standard operating procedure and is key to maintaining the integrity of elections. All 50 states and the District of Columbia have vetted and excluded ineligible candidates from running for office in the past.
The states can (and should) do it again. And this time, they should keep insurrectionists from appearing on ballots in 2024.
In this edition:
- Who can and cannot run for office
- Where the insurrection comes in
- How states have routinely wielded their ballot authority in the past
- And the urgency that they do it again
For today’s edition of The Bridge, I enlisted the help of David Janovsky, policy analyst for The Constitution Project at POGO. David spent the past few months working on a report on states’ authority to disqualify ineligible candidates from appearing on ballots, which we recently published in tandem with Citizens for Responsibility and Ethics in Washington (CREW).
New Report:Routine Disqualification
Setting the stage
In just the past few weeks, movements challenging the validity of Trump’s presidential candidacy have kicked off in several states, including New Hampshire, Michigan, Connecticut, and most recently Colorado and Minnesota. The basis for these challenges is found in Section 3 of the 14th Amendment of the Constitution, also known as the disqualification clause. The disqualification clause bars from office anyone who has sworn an oath to uphold the Constitution and then engaged in insurrection against it. We explored the clause in depth in a previous edition of this newsletter.
“The clause can be used not just to remove insurrectionists from their positions in office, but to keep them off of ballots in the first place,” David explained.
You must be this tall to ride
There’s a handful of constitutional criteria you have to meet to qualify as a presidential candidate. To run for president of the United States, you must be at least 35 years of age, be a natural-born citizen, and have lived in the U.S. for at least 14 years. Presidents can only serve two terms, and according to the disqualification clause, can’t have engaged in an insurrection against the government while in office.
In the report, David et al. provided case studies on instances over the years where presidential candidates were disqualified from running for failing to meet age, citizenship, and residency requirements. “There’s no reason to think that the criterion on insurrection is categorically different,” David said. “The process of disqualification is routine, even if insurrection isn’t a routine disqualification. It may be novel, but it is not undoable.”
Mechanisms in action
One case study in particular is worth focusing on here: The case of Abdul Hassan’s disqualification in Colorado. A state official excluded Hassan from the ballot for not meeting the natural-born citizen requirement to run for president — a decision that was “expressly reaffirm[ed]” by a federal court that included then-Judge Neil Gorsuch. The case not only demonstrates the process of state-level vetting of presidential candidates in action, but the federal court’s decision also affirms a state’s authority over such matters.
“It is not optional for the states to disqualify insurrectionists from office. It is a constitutional command,” David told me. “It’s essential to protect the government that we not let people who have tried to overthrow it back into power.”
That is all to say…
As the primaries inch closer, deadlines to file for candidacy and for states to print their primary ballots are approaching. “So this is absolutely the right time for states to be asking these questions,” David said.
Last year, a New Mexico county commissioner was removed from office by a state judge for engaging in insurrection during the January 6, 2021, attack on the Capitol. Though keeping a name off the ballots in all 50 states is a different beast, that does not mean it’s impossible and certainly shouldn’t discourage the states from trying. States already have the tools and mechanisms in place; removing ineligible candidates from ballots is business as usual. And let’s face it: Candidates have been disqualified for a lot less.
“Just because it is complex, doesn’t mean it’s a long shot,” David said. “It’s just a less common application of a very common process.”