The Volokh Conspiracy
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Why Efforts to Invoke Section 3 of the 14th Amendment to Keep Donald Trump Off the Ballot May Fail
Election law expert Derek Muller reminds us that we have seen these sorts of claims before.
Claims that Donald Trump is ineligible to run again for President under Section 3 of the Fourteenth Amendment have prompted extensive discussion. (See, e.g., these posts by Steve Calabresi and Josh Blackman, Judge Michael Luttig's Twitter account, and this paper by Will Baude and Michael Paulsen.)
Over at the Election Law Blog, Professor Derek Muller explains why these claims face serious challenges and are not likely to keep Trump off the ballot. He writes:
Challenges to presidential candidates' eligibility are not new. There were extensive challenges to Barack Obama and Ted Cruz (among others) in administrative tribunals and courts. Most of these challenges never reached the merits stage of whether the candidate was a "natural born citizen" because they failed to clear some other hurdle.
The bulk of challenges right now are doing exactly the same thing and making the same mistakes, or are on pace to do the same.
As Muller notes, there is no clear, established mechanism for keeping candidates off of the ballot. Such questions are generally controlled by state law and administered by state officials. As he notes,
If challenges are not using this specific, pre-existing mechanisms to address presidential qualifications challenges, which are contoured to each state's specific law, the challenges are likely doomed to fail.
Election officials hold no unilateral power to exclude candidates from the ballot–and, frankly, we are fresh off a cycle where election officials purporting to take unilateral action without a statutory authorization to do so have been routinely losing challenges in mandamus.
Some have hypothesized that other candidates -- Chris Christie? Asa Hutchinson? -- could try and sue to keep Trump of the ballot, but there are serious obstacles here as well including (again) that much ballot access is a matter of state law, which could cause federal courts to abstain from reaching the issue.
The bottom line is that a silver bullet to prevent the re-election of Donald Trump remains hard to find. Those who oppose his re-election may have to do things the old fashioned way: Ensure their candidates get more votes.
