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.
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"Ensure their candidates get more votes."
A well proven approach - - - - - - - -
See also: https://priorprobability.com/2023/08/31/disqualification-clause-update/
“Ensure their candidates get more votes.”
He did. The guy who tried to overturn the election didn't accept it and neither do his supporters.
FYI: Here is my latest takedown of Baude and Paulsen: https://priorprobability.com/2023/09/01/the-ineffectual-sweep-and-limited-force-of-false-analogies/
In your post you said:
Baude and Paulsen contend that:
I'm not sure there is a disagreement between Baude/Paulsen and you.
I don’t really care, it’s not going to happen, either way. What’s appalling is that he’s running again, with support, a corrupt anti-democratic authoritarian who tried to overturn one election is now running in another and lots of people thinks that’s cool and pretend they don’t get why so many other people find it appalling and why it’s such a terrible fucking idea, because they’re anti-democratic authoritarians too.
Well, he did not try and imprison his chief political rival.
So, Trump has that over the fascist Biden.
Anybody voting for Biden is a fascist. There is no other view.
Biden isn’t trying to imprison Trump (that’s why Garland appointed a special counsel). But even if Garland were directly prosecuting Trump (or you think the special counsel isn’t separate enough from the rest of the DOJ), it wouldn’t be because Trump is his political rival, but rather because he tried to steal an election.
And to Nige's point, had Senate Republicans not been cowards, and convicted and disqualified Trump for trying to steal the election, Trump wouldn't be Biden's political rival.
Certainly worth pointing out that there's no history of anybody being kept off a ballot on Section 3 grounds, ever. Not even actual Confederates.
"Those who oppose his re-election may have to do things the old fashioned way: Ensure their candidates get more votes."
The key point here is that we're talking about people who consider even letting the voters have the choice of putting Trump back in office an unacceptable risk. They view him as an existential threat to the country, not an ordinary bad politician.
Or...they have a good faith argument that Trump is ineligible to serve under the terms of 14A section 3. They may or may not be right, but they don't necessarily have ulterior motives.
Ulterior motives are all there are. A bunch of talking heads facetiously want a fast trial because they want it to happen before the election, to keep him off the ballot, in jail to make him look bad, or just make him look bad as a last resort.
If prosecution was a pure, noble concern, the grinding wheels of justice should be fine. It isn't.
The most laughable is The People need to see timely justice to have confidence in the law. This from people delaying executions decades (something I have no problem with, but I am not a facetious liar trying to have my cake and eat it to.)
You are incorrect.
If Trump understood perfectly well that he lost the election (a thing I have mentioned is very hard to prove) and engaged in the behavior he did anyway, that would make him unusually dangerous to put him in a position of power. (I say unusually dangerous, because there is always some danger whenever anyone gets power.)
While I question the practical wisdom of the prosecutions, I do not believe they are necessarily brought in bad faith.
The senile fool that we have now isn't inherently dangerous?!?
He's already started one war with his verbal stupidity....
Dr. Ed:
I said above, giving anyone power is a source of potential danger.
I am not sure what war you think he started. If you are talking about Russia's invasion of Ukraine, that was started by Putin.
'He’s already started one war with his verbal stupidity….'
Your paralell reality is drifting further and futher away from baseline.
Brett, theoretically, this is really no different from other people who don't trust the voters to make good choices and insist that we have an electoral college to prevent the voters from making the decision.
Look, at the end of the day, you either believe in democracy or you don't. And if you don't, and you are willing to use anti-democratic institutions like the electoral college to dilute democracy, then you really have little to complain about when the other guy uses Section 3 to undermine democracy.
Just to be clear, I do think Trump is an existential threat and if he gets re-elected then the American experiment will largely be over. But I also believe that if that's what the people want, they're entitled to it, and I'm not willing to keep him off the ballot. In exchange for that, I don't think he should be president unless he convinces a majority of the voting public -- not the EC, but the actual voters -- that he's the best man for the job. My position is at least internally consistent.
Case in point, John Podesta from the Hillary Clinton campaign who demanded that intelligence agencies deliver a briefing to the electors in 2016.
It doesn't stand to reason that the candidate who was already president for 4 years, and has not changed much at all, is an existential threat.
If you completely ignore his actions during those four years that led him to be the first president impeached twice--specifically the second impeachment regarding Trump's attempted coup. That he hasn't changed much at all only underscores the issues with his second term and lends credence to his potential existential threat to democracy.
It was not an attempted coup.
It was a counter-coup to the "Trump Colluded with the Russians®™ to Steal the 2016 Election" propaganda campaign, which was a coup attempt.
Counter-coups can not possibly be wrong.
It was a clown show that got out of hand.
There is an existential threat, but it wan't that. It was a monstrous use of the investigative power of the United States against a political opponent.
Such people facetiously lie and feign pure motives, but it's all git 'im.
"But...but...!"
This
Means
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That doesn't make sense on any level, not least because it had nothing to do with anything other than Trump losing the election and being an autocratic crook. The rest is fan fiction.
Ever heard of the Durham Report.
Every heard of real actual evidence? Trump is currently learning the difference between that and fake evidence and accusations.
No nukes were launched.
No wars started, foreign or domestic.
No default on the debt.
No nationalization of industry.
And no, breaking into the capitol building is not a coup, it is a trespass.
Sloth, I take it you have not read the Supreme Court decisions which resulted from the treason charge against Aaron Burr and others. Those are remarkable in present context chiefly for the puzzle they create as to why treason has not been charged in the present case, at least against those who led what you call, “trespass.” The only point in reasonable doubt is who the ultimate leaders were, whether Trump or someone else.
Every legal precedent to define treason outlined in the Burr decisions has already been more than satisfied by publicly available evidence. By those definitions, it is unambiguous that the Capitol attack was conducted by people making war against the United States. Many of them could have been charged with treason. We may be about to discover that it was unwise not to do so.
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. "
Exactly how has Trump done either?
Sounds more like Biden, taking bribes from the Chinese, currently our #1 geopolitical enemy.
Partisan accusations = proof
Indictments = no proof
Thank you for the expert legal analysis and commentary
It does strike me as, shall we say, a bit odd that the people most prone to calling the Jan 6 events a mere trespass also tend to be those most inclined to call a family with children slipping over the border an invasion and an act of war.
Partisan democrats believe the US has been living under existential threat ever since Roe was overturned.
No - but it is a telling strawman when put up against the ridiculous high bar you set for what counts as a threat to democracy.
You're pretty committed yourself.
High finance must have some fancy plan for post-democracy America, seeing that the indices remain at all time highs.
When the fuck did high finance ever give a shit about democracy and whether humans were suffering or not?
"If you completely ignore his actions during those four years that led him to be the first president impeached twice"
Trump's impeachments had nothing to do with him. They are no more "his" impeachments than his reputation is "his". If you don't understand this, read Epictetus.
Shawn, the first one was Trump asking Ukraine to investigate the reality that Biden committed a quid pro quo to get a prosecutor fired who was investigating the company employing his son.
You really want to hold that out as Trump doing wrong? He simply asked for an investigation for something that indisputably happened. He was impeached for asking about Biden's crime.
I love that Trump was impeached for investigating his "chief political rival" (who had not declared for President) while Biden is trying to imprison his.
Reality? Indisputable? If it were, why didn't the DOJ open an investigation. Why didn't Ukraine?
The DOJ? LOL. A bunch of untrustworthy, corrupt clowns. The FBI is even worse.
And that’s why I came to you, Don Corleone.
Commenter, the trope of 'everyone else is corrupt and their information is not to be trusted; only one man can fix this' is explicitly authoritarian.
Congrats on joining the ranks of the tin-foil brigade.
He's on video saying he did it. There are emails that are about this exact issue right before Biden committed the quid pro quo. The investigator was investigating (the founder left Ukraine for a reason and returned when Shokin was fired) Burisma.
This is all fact. Every word of it. And they impeached TRUMP for trying to investigate it.
FFS. The video shows Biden threatening to withhold money if Ukraine doesn't fire their prosecutor who the entire western world believed was hopelessly corrupt (including not investigating Burisma). That's not a quid pro quo where Biden is seeking personal gain. It's an implementation of American, and united western foreign policy.
Sure, it is interference in the internal affairs of another country.
But its okay when the US does it to others
So someone has to be for every possible exception to pure democracy if they're for even one such exception? Nice strawman you've built there. Excluding a candidate from access to a ballot in some state ensures that said candidate will not receive any electoral votes from that state. This is a nuclear option in comparison to the basic concept of an electoral college.
The electoral college does not dilute democracy. Instead, it gives slightly more weight to states with less population.
Overall, the electoral college does not function as expected. Members of the electoral college were supposed to decide for themselves who to vote. But, the overwhelming focus that people had when voting for members of the electoral college has always been which candidate they will support. This makes sense, since the electoral college is a very temporary office with no authority other than to select a President.
Overall, the electoral college is flawed, but just fine. In any situation where the country has strongly prefers a candidate, those preferences will be translated into victory. The electoral college only matters when people are very closely divided. As they have happened to be quite a bit in the modern era of polarization.
The electoral college does not dilute democracy. Instead, it gives slightly more weight to states with less population.
It does more than that. Only two states split their electoral votes. All others + D.C. are plurality take all. Winning Florida by 547 votes netted George W. Bush all 25 of Florida's electoral votes (0.009% victory) just like his 21% victory in Texas got him all 32 of its EVs, Gore's 12% wins in California and Illinois got him all of those states' EVs...
This concentrates presidential elections down to a dozen or so "swing states". The major party nominees basically ignore any state that is a lock or out of reach during the general election, since there is nothing to be gained by going to them or spending money on advertising. This gives swing states are larger effective role in presidential politics regardless of the size of the population in that state. Nevada only had 6 electoral votes, but had 11 campaign events by both nominees and more was spent there than in Ohio with its 18 electoral votes.
If all states would award their electoral votes proportional to the vote counts in the state, the Electoral College would be a lot less controversial.
*In my opinion, Nebraska and Maine split their few electoral votes in poor manner. They give 2 EVs to the statewide winner and 1 for each congressional district. That just adds even more incentive for gerrymandering, if it needed more.
This is true. The idea of awarding all the electors to one candidate, even though a state is divided is problematic.
But, that problem has kind of canceled out nationally. It is potentially a problem with larger states.
Say that California and Texas were aligned. You could see a situation where a majority of California and Texas might consistently elect their preferred candidate, even though their candidate wasn't the preferred choice for the nation as a whole. But California and Texas aren't aligned. Also, a candidate is unlikely to get much support in California and Texas unless they can get a whole lot of support elsewhere.
I think bigger distortions occur in the primaries. Ironically, especially on the Democratic side.
Overall, while the system isn't perfect, it works very well though. It takes a massive amount of popular support to be elected President.
I don't see how it has canceled given the results in 2016 and 2020. The Democrats are running up the score in large blue states thanks to ever larger margins in urban areas. As long as that trend continues, there will be an imbalance that favors Republicans.
Exactly. The trend is clearly for an increasing gap between the national popular vote total and Electoral College results.
Edit: And this is because of deliberate choices by both parties, but more so the Republicans. They are the party that has leaned into the urban-rural divide with culture war issues.
Reminds me of how the USSR defined peace: Nobody opposing the USSR! Similarly the left views "culture war" as anybody opposing their efforts.
I suppose technically it's not a "war" if the side that's attacked just preemptively surrenders...
The reason there's a growing gap between the EC and popular vote results, is that in places where the Democratic party is dominant, they eventually end up REALLY dominant. They don't stop at getting 55 or 60% of the vote, they keep going to 70, 80, 90%. There are numerous precincts in Democrat controlled cities where you routinely see no Republican votes AT ALL.
Using gerrymandering, jungle primaries, and even less savory methods to suppress the opposing party may rack up large popular vote margins where you're in a position to do it, but it doesn't really help you a lot in a system that's first past the post, like the EC.
'We may be the ones who look authoritarian and talk like it, but that's because the other side is secretly worse!' is an extremely old authoritarian trope.
I wonder when you'll discard elections as a liberal plot.
Similarly the left views “culture war” as anybody opposing their efforts.
Social conservatives aren't opposing efforts by "the left" to break down traditional cultural values and roles. They are opposing trends rooted the changing realities of how society functions.
Liberalizing of social norms is not inevitable, though. Social conservatives try and maintain their ability to define what the acceptable culture is, and they will work against change. They can turn back to the clock, so to speak, and slow the pace of change or even reverse it. But to do that, they have to have political and economic power.
Left to their own devices, individuals tend to do what they want. A small town with few churches, or even just one, a single school, businesses and government that all adhere to a narrow set of cultural values can easily hold those in check that might want to express their individuality and show their distance from the dominant culture. Having control of institutions, traditionalists can discourage nonconformists, even ostracizing them as examples so that others don't even think of expressing their individuality publicly. But that isn't possible in cities and is considerably less effective even in suburbs. Thus, social conservatives need the full power of government to enforce their "traditional values", which is how the culture wars start.
Either owning big businesses or putting pressure on them is another way to engage in culture wars and try and force their way of thinking. (See Bud Light, Target, and other boycott attempts against companies expressing support for LGBTQ+ rights.)
In western democracies, right wing politicians say that they don't want schools indoctrinating children into leftism, anti-racism, or acceptance of LGBTQ+ rights, while happily working to indoctrinate children in what they believe. But we can see what happens when those forces go beyond trying to win elections. Look to any theocratic nation in the world today, and look to the history of fascism, or even "white nationalism" in the present U.S., and you can see how far some people will go to force their country to conform to their ideas of how people should worship, who they can love, how to be patriotic, what kind of people should have rights and which should not, who should run the household, how people should dress ...
Whether a state awards all of its electoral votes to the candidate receiving a statewide plurality is up to the legislature of each state. Maine and Nebraska each award two votes to the candidate with a statewide plurality, with the remainder awarded by House district. The leader in each House district gets one vote.
In 2020 Biden got three electoral votes in Maine to Trump´s one. In Nebraska Trump got four to Biden´s one.
" The major party nominees basically ignore any state that is a lock or out of reach during the general election, since there is nothing to be gained by going to them or spending money on advertising."
And this is why you can't realistically look at the popular vote under an electoral college system: Most of that vote is being accumulated in states where neither party really bothers campaigning, it looks nothing at all like it would if both parties were campaigning everywhere.
Democrats rack up huge vote margins in California, a no-hope state that's not just Democratic, but gerrymandered for Democrats, too, so that outside of a few isolated areas voting as a Republican is futile, and Republicans just stay home.
Election after election Democrats' boasted of popular vote margin comes entirely from California, where for the reasons above, Republican turnout is dismal. No state of any size is remotely as skewed Republican. (Texas may be huge and Republican, but they aren't gerrymandered, so Democratic turnout isn't suppressed.)
Switch to a popular vote election for President, and campaigns would be conducted very differently, and so voter behavior would be different, too.
I am not one of those fundamentally against the EC - the mix of popularist and anti-popularist institutions is part of our Founders genius.
But holy shit read your own comment. You're discarding a ton of people's votes just because it's a blue state. Those people's votes are not illegitmate because they're strongly Democratic!
You can’t gerrymander a statewide vote. If you are arguing that districts are gerrymandered and that suppresses a statewide vote for president, I’m not buying it. But assuming you are correct, proportioning EC votes by statewide popular vote rather than have winner take all addresses your concern.
Overall, the electoral college does not function as expected. Members of the electoral college were supposed to decide for themselves who to vote. But, the overwhelming focus that people had when voting for members of the electoral college has always been which candidate they will support.
I don't think anyone outside of party back rooms has paid any attention to who the Electors could be in well over a hundred years. The only reason any of them have gotten recognized from the 2020 election was because of the potential electors that signed uncertified electoral votes, and who are now facing investigations or charges if clear statements weren't included that the votes were conditional on the official results changing.
Overall, the electoral college is flawed, but just fine. In any situation where the country has strongly prefers a candidate, those preferences will be translated into victory. The electoral college only matters when people are very closely divided. As they have happened to be quite a bit in the modern era of polarization.
Yeah. It's just fine except for the cases where it isn't.
Pretty much. The existence of the electoral college certainly has the potential to cause trouble and has caused some trouble in the past.
But most of the time, it doesn't cause trouble. Reforming it just isn't the highest priority.
It doesn't cause trouble when the Electoral Vote winner is also the one with the most votes across the whole country. Half of the last six Presidential elections have had "trouble" because of the Electoral College. Without the EC, 2000 wouldn't have come down to just a single state where outdated and inaccurate ballot designs cast doubt on the accuracy of the count. Without the EC, 2016 and 2020 wouldn't have been decided in a few states with tens of thousands of votes difference between the candidates when there were differences of millions of votes across the country.
Conspiracy theorists are always going to find reasons to believe in massive conspiracies, but there just wouldn't have been any way for Trump to close a 7 million vote gap. No one could "find" that many votes in red states.
So if it *had* been necessary to steal the election from him in 2020 to get him out of the White House, would you have been OK with that?
I mean part of the determination of how bad he is requires that he lose 2020 and all the shit he did subsequent, so it's not a well predicated hypothetical.
Correct, just like Trump viewed Obama.
Since you yourself are the one who keeps saying that there were no ballots to be kept off of in the post-Civil War era, that's a meaningless observation.
Doesn't explain the Victor Berger case.
The "Victor Berger case" was an act of Congress. They decided to apply the disqualification, and later changed their mind. How is that precedent? It was one particular Congress dealing with one particular candidate.
That suggests that S3 of 14A is unenforceable – which strikes me as an odd position to take wrt any part of the Constitution..
But if one take para 2 of Art 6 in combination with 14A S3, any state suit to restore Trump to the ballot after a state official had removed him must necessarily lose in court.
We can read Section 5 of the 14th Amendment.
“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
So, a freshly recruited Marine would not have authority to depose FJB for providing aid or comfort to the Taliban, because Congress did not give freshly recruited Marines authority to depose Presidents who are disqualified. Any Marine who does so would properly face charges of mutiny before a general court-martial.
Congress decides how Section 3 is enforced.
Subject to review by SCOTUS, of course. Section 5 also applies to Section 1, and SCOTUS has had no problems wading into questions of privileges and immunities, due process, and equal protection. I'm sure SCOTUS will easily find that it has the right to interpret the meaning of "appropriate legislation," "insurrection," etc.
It could be enforceable, just not willy nilly with lots of discretion for partisan officials.
I don't think the following conflicts with either the Constitution or what Prof. Adler is saying:
1. Congress passes enforcement legislation.
2. To avoid due process concerns, the trigger for disqualification would need to be either a conviction for insurrection/treason, or maybe the result of a civil action brought in a specific federal court.
3. To avoid commandeering (or relying upon) state officials, the enforcement mechanism would be declining to count electoral votes for disqualified candidates.
4. States could come up with their own rules for which names to print on the ballot. One would guess many would tie it to the law passed by Congress.
Ducksalad, your enumeration turns upside-down a fundamental principle of American constitutionalism. There is no right to office, even for someone who claims to have won an election. Office is not to be bestowed by government, nor by government officials. Office is the gift of the collectively sovereign People of the United States, who bestow that gift at their pleasure. Due process has nothing to do with it. What the People wrote in the Constitution is their governing decree. It makes no mention of any role for the courts.
That said, I do not expect many will show the fortitude to stick to that fundamental principle of popular sovereignty. Instead, I expect to see yet another lunge for judicial supremacy, however illegitimate. It would not surprise me if a Supreme Court majority decided to take the, "Major Questions," dog out for another walk, but this time in an attempt to use it to hold at bay the People themselves, instead of using it merely against Congress.
Read carefully: it’s not about due process for Trump. It’s due process for determining who is correct in a factual dispute.
Suppose the Texas Secretary of State declares that, since Trump was the legitimate 2020 winner, Joe Biden is in fact the insurrectionist who has overthrown the legitimate POTUS. (It’s nonsense but we have officials who might do this stuff, so bear with me.) Furthermore, his extended support organization, namely the Democrats, is a party to the insurrectionist conspiracy. Therefore, much against his personal inclination and regretfully (cue some theatrical tears here about some of his best friends being Democrats) he finds himself obligated by the 14th Amendment to remove Biden and his entire party from the ballot.
Three things you’d do: (1) You would point out, correctly, that the Texas SoS is factually full of shit. (2) You’d abandon, correctly, your ridiculous assertion that a unilateral decision by a partisan official has anything to do with popular sovereignty. (3) You'd demand, correctly, that his decision be overturned.
What is your precise mechanism for getting his decision overturned? You’ve ruled out any role for courts….
ducksalad, can you come up with a better hypothetical, one with a show of plausibility? The one you have is equivalent to asking what do you do if the Texas Secretary of State declares Biden ineligible because he is 14 years old.
By the way, my point in mentioning the role of of a continuously active sovereign is not to suggest that that notion fits well with the nation's present norms of governance. My point is to suggest that ours is a system which was designed on the basis of presumptions about a role for the popular sovereign which have been so long disregarded that they have been forgotten. In their absence, various derangements of the originally-intended system have grown apace.
A notion that judicial supremacy extends to disputes over sovereign power is one of those. To think that is to think that government officials (in this case judges) have legitimate power to constrain the sovereign. That is American constitutionalism upside-down, as I said. The sovereign constrains the government, not vice-versa.
This is starting to sound like those guys that invoke sovereignty during a traffic stop.
Yeah, the people are sovereign, fine. When a king is sovereign it's clear what that means - his decisions stick and his beliefs are the ones that are deemed to be truth. When you say the people are sovereign, you're immediately faced with the fact that different people want and believe different things.
So, now that you've excluded government officials and courts, how exactly does this sovereign people you keep referring to decide the issue at hand: whether Trump will be on the ballot or not? Can you inform us what the sovereign decided?
Sure, Lathrop can and will tell you because his small town newspaper mind is connected to the collective mind of The People
Stephen, how do you reconcile your argument with the strong protections against conviction after impeachment? The standard for removal is nearly impossible to meet. Seems like there’s a lot of process built into removal of the President. Almost looks like there is some type of right to the highest executive office, at least once assumed.
Read the nation's founding documents. You will not find any mention of a, "right to office," in any of them. You will find, "the gift of office," mentioned repeatedly.
Also, nobody is talking about removal of the president. Even if you think that process is somehow analogous, note that there is no role for due process built into it.
What's at issue isn't Trump's non-existent right to be President. What's at issue is the right of voters to vote for who they want, and have that vote matter.
It's a voting rights issue, not an office holder rights issue.
What's proposed here is to deny the voters the option of voting for Trump, or if that can't be achieved, to render that vote futile by refusing to permit it to matter.
'and have that vote matter.'
Whuch Trump and his supporters do NOT respect.
Cannot figure out why. With Biden going full Fascist, I do not respect any vote for him and will assume all are fraudulent.
How is the major questions doctrine applicable? This is not an administrative law issue. The concept of judicial review is extremely well-established by now. That, plus the text of Section 5 of the 14th Amendment, is really all the courts need to get jurisdiction here.
Yes, my point was that the major questions doctrine is indeed inapplicable.
I think the Bill of Attainder Clause, the Religious Test for Public Office, and other clauses suggest that, even before the Bill of Rights, the original constigution suggests that people cannot be stripped of public office willy-nilly.
I think anybody declared an insurrectionist would be entitled to challenge that declaration in court as a matter of course. An ddeclaration by a punlic official or an administrative procedure alone alone are just not adequate.
And I don’t see that as a big deal. We allow court hearings for lots of things, why not this? Your argument doesn’t strike me as plausible even on a rhetorical level. Since when do we allow administrators to declare themselves the sole representatives of the People?
That said, I also don’t see Professor Adler’s arguments as compelling. Some administrative official somewhere will probably take action. Trump will challenge it in court. It will eventually get to the Supreme Court, and we’ll see if Professor Adler is right.
At least in the case of the Baude - Paulsen paper, they aren't advocating for challenges to keep Trump off the ballot. They are advocating for state election officials and boards who have the authority under the laws of their states to make eligibility determinations, to rule that Trump is ineligible and to not allow him on the ballot. Indeed they are arguing that such officials are required by the constitution to do so.
They claim that Section 3 is self-executing, instead of the enforcement mechanism being provided by Congress under Section 5.
Of course, if it was self-executing, why can not the military depose FJB for botching the withdrawal from Afghanistan, if they feel it constituted aid or comfort to the Taliban?
Trump surrendered to the Taliban…and it was the correct decision.
I'm sure the argument will be that Section 5 only provides one avenue of enforcement and that it doesn't close off other such methods. Even if true (I'm highly highly highly skeptical SCOTUS would agree), I'm curious to hear how proponents of this view think it would fly under basic vertical separation of powers considerations.
Baude and Paulsen basically take the position that Section 3 blew up every part of the Constitution that might even inconvenience you in stopping Trump.
"Third, to the extent of any conflict with prior constitutional rules, Section Three repeals, supersedes, or simply satisfies them. This includes the rules against bills of attainder or ex post facto laws, the Due Process Clause, and even the free speech principles of the First Amendment."
"Basically" is doing a lot of work in your comment. Their only point is that since 14A came after the original text and 1A, it supersedes it for the situations covered by the section. How can you disagree with that? Isn't that how the amendment process works?
"Isn’t that how the amendment process works?"
Could be, but it would be a constitutional tragedy if it did.
We'll have to wait until the question goes to the Art III courts to decide
Ejercito:
"They claim that Section 3 is self-executing, instead of the enforcement mechanism being provided by Congress under Section 5."
Not "instead of", but rather "in addition to." I'm not arguing that they were right or wrong, just restating their case. They make a pretty good case, if you read the whole paper. Not sure SCOTUS would agree. Perhaps we'll find out.
Drinkwater, thank you for the stylish N-dash. Not sure I have ever before seen that used correctly on this blog.
You're welcome.
Prof. Muller is obviously a MAGA.
He's an official clinger but not necessary a Trump-class loser.
They will definitely fail. No one in a position of responsibility would go anywhere near an attempt to section 3 unless they know their decision will be overturned instantly. That is, some grandstanding politician in a deep blue state might have a go, but only because they know they won't succeed.
I'm sure I'm missing something but the 14th doesn't mention being kept off a ballot. It says they can't be President, not they can't be elected by popular vote. Since we don't elect by popular vote anyway, why couldn't it be read to just deny the office regardless of a vote by the people (or Electoral College).
The Electoral College just couldn't elect that person and if they did he/she couldn't serve unless Congress waived it. That last part seems to suggest you could win an election and then Congress can decide to waive it.
So, again, why do people argue it means being kept off a ballot?
The only non-Confederate case involving a federal elected official was the Victor Berger case.
The House of Representatives, exercising its Article I power, excluded Berger on the basis that his Espionage Act conviction disqualified him under Section 3 of the 14th Amendment.
It would seem to me that Congress would enforce Section 3 with respect to the President or presidential candidates, either by the impeachment process, or by disqualifying electoral votes for the candidate.
Now, there is a nearly-trivial argument that FJB botching the withdrawal of Afghanistan, which resulted in the Taliban acquiring materiel, constituted aid or comfort to the enemy, and thus disqualifies FJB. The House has refused to impeach him for that yet, but they clearly have the authority to do so. (I make no comment on the wisdom of such an act.)
A freshly recruited Marine private has no authority to depose the President even if the President openly gave classified information to the enemy, simply because Congress declined to authorize that sort of enforcement mechanism pursuant to their Section 5 power.
Either Biden is POTUS or he isn’t. There is no “depose”. But even if he isn’t, it isn’t the job of some random Marine to evict a trespasser from the White House. He’d become a trespasser himself if he did.
Congress has no constitutional power to disqualify electoral votes. If they did, Congress would have the power to determine the winning Presidential candidate in all elections.
"I’m sure I’m missing something but the 14th doesn’t mention being kept off a ballot."
The 14th amendment was written 20 years before "the Austrian ballot", (Pre-printed ballots provided by government.) was first adopted anywhere in the US. It doesn't mention being kept of the ballot because that wasn't a thing. Voters provided their own ballots, and voted for whomever they damned well pleased.
And, historically, Confederates who entirely objectively were subject to section 3 ran for office, got voted for, got those votes counted, won when they got more votes than anybody else, and were only stopped at the point where Congress refused to seat them.
Literally NEVER has Section 3 been treated as "self-enforcing" by anybody in a position to mess with the election. It's about as ahistoric take on section 3 as you could imagine.
Yup. The mechanism in this case would be Democratic congressmen objecting to Trump's electoral votes being counted based on Section 3, and if they happened to get a majority of both houses, it would work.
If they plan to do that......they definitely need a better security plan than last time.
Under the rules of the Electoral Count Reform Act, it seems like the only basis for an objection is that the electoral vote wasn't legally certified, not that the candidate wasn't eligible. So it seems like the Congressional vote-counting process isn't the right forum for this sort of objection.
I did just realize that the same Act does provide a mechanism for expedited judicial review of an objection raised by a losing candidate in an election, so maybe that's the right way to resolve this sort of question.
Thanks for informing me about that provision of the EC Reform Act.
So, let’s say Rep. Jamaal Bowman files an objection, either directly in the face of the Act, or alternatively, he says the electoral vote wasn’t legally certified because it involved an illegal candidate.
Regardless of the rationale given, a majority of both houses vote to reject Trump’s electoral votes.
Is the EC Reform Act going to enforce itself? Are the Capitol Police going to rush in and arrest a majority of Congress?
I'd imagine that if Congress didn't follow the law when counting the ballots and declaring the President, that would set up a lot of unnecessary litigation about both Congress's action as well as everything the President ended up doing.
Seems better to just have the loser object using the expedited judicial review process; such objection gets reviewed by a three judge panel and is directly appealable to the Supreme Court so we'd hopefully get a rapid and authoritative call on the legal question.
FWIW, although I agree with you and Brett that post-election review seems like the more proper way to apply the 14th Amendment here, the weakness is that it leaves the question unsettled until after the election and will inevitably result in complaints that the attempt to deem the candidate ineligible is illegitimate by virtue of coming too late in the process. Ideally there would be a way to evaluate this stuff up front, but seems like it may need Congress to do something in advance to set that up.
Last time's security plan was not a flaw, it was a feature...
I keep vacillating between it being a Reichstag fire, and the people in charge just not being able to believe that it was possible for Republicans to riot. Certainly they had ample warning, and affirmatively rejected taking precautions.
I think there's certainly not much chance of it every going down that way again, though.
Do you realize how you come off when you write this stuff about your
evidenceless partisan speculations?
Nothing bad ever happens in your world except for legions of liberals with agency letting or making it so. And then all of them keeping the secret.
"So, again, why do people argue it means being kept off a ballot?"
You're completely correct. A lot of people just haven't thought carefully about what they're saying.
However, the more sophisticated ones are leveraging off state laws that say only qualified people can have their names printed on the ballot. Some states don't even have such laws, and as Prof. Adler notes many people who were under 35 and/or not native born have received popular votes. No one made much of a fuss because they were obscure minor party nominees.
Actually we are well on our way to electing a President by popular vote. How many States have signed on to the "winner take all" when it comes to Electoral Votes? Look at a voting map. When you see a vast area of a State vote for one candidate while the small densely populated area votes for another and that candidate wins all of the Electoral Votes for the State. The establishment of the Electoral College was designed to prevent just that.
It's "one person one vote" not "one square mile one vote."
Then it's a good thing each voter gets counted equally when voting for electors then, isn't it?
The same could have been said when congressional districts were not balanced in population, as is now required; each vote for a representative counted the same. But then a smaller population got more representation in Congress, same as the electoral college gives smaller states.
"One man one vote" was a poorly chosen catchphrase for the concept of equal representation.
It's better than "one square mile, one vote", and the problems with "one person, one vote" are usually with the secret addenda about some groups of persons don't get their votes to count as much as the votes of other groups, or they don't count at all.
shawn-dude -- you need to learn your history.
In 1787, VA & MA were the big states and they wanted one man, one vote VA also wanted 5/5ths for each slave -- 3/5ths was a reduction on that.
The other 11 states said "no bleeping way" and they wanted each state to have an equal number of votes, as they did in the Continental Congress. Hence the compromise of the House and Senate, extended to the EC.
They never imagined cities as they exist today -- Boston was the biggest before the days of steam tugs.
More Dr. Ed 2 history. Massachusetts was less populous than Pennsylvania. New York was large but its representatives preferred equal representation of each state. Not every state was present when the compromise was adopted.
I'm not following how the Electoral College was designed to prevent awarding all the electors in a single state to the candidate that won the plurality of the votes in that state.
It wasn't, unfortunately, but those types of state laws happened very quickly. Madison is on record hating the winner-take-all laws.
This Republican obsession with empty land being a demonstration of how popular their candidates are is pretty weird tbh.
They have nothing better to use to try to support their positions.
No it wasn't. The population distribution you claim the electoral college was designed to prevent did not exist. Nor was it foreseeable in a nation overwhelmingly dependent on agriculture. At the time of ratification, Rhode Island was the most urbanized state in the nation. Virginia, Pennsylvania and New York all featured populations more-rural than Rhode Island's.
Realistically, it's not going anywhere. There's an almost complete overlap between states that have signed on and noncompetitive states that always go to the Democrats outside of utter tsunami elections of the sort we haven't seen in decades. This is no accident, all the motivation for this compact is Democrats pissed off about Republicans winning in the EC.
As you get into smaller states that are highly competitive, you're basically asking them to stop mattering, and let California and Texas decide the election. Not happening.
The better course likely would be to (1) add a few states, in circumstances in which that is overdue, and (2) increasing the size of the House of Representatives to bring district size closer to traditional experience.
That would diminish the increasing, undeserved structural amplification of certain rural voices.
No, that's not even a little bit right. When the EC was established there mostly weren't popular votes in the first place, and there were no "small densely populated areas."
Wow, it seems hard to keep a Democrat or Republican off the ballot even on the grounds that they’re ineligible for the office they’re running for.
Meanwhile, a person who is fully and unambiguously qualified for an office can be kept off the ballot because he’s not part of the Republican/Democrat cabal, and hasn't jumped through the obstacle course placed in his way by that same cabal for the purpose of obstructing third parties and independents.
We’re supposed to suddenly give a flip about ballot access all of a sudden now that a duopolist faces a challenge?
In the general election, true.
But trying to keep opponents in the Democratic or Republican primary off the ballot is routine strategy. Pick over their signature lists. Find some tiny flaw in their paperwork. Do surveillance to see if they spend more time at their home in the district or their other house in the next district. Check if their driver’s license / voter’s registration / electric bill still has an old address on it. Accuse them of not being a member of the party, if the state requires that. See if their paperwork got stamped in after the deadline, even if it was physically submitted on time.
To be fair, most of the tactics they’ve used on third parties, they use on each other within the party.
Interesting...
Keeping a political opponent off the ballot through novel theories cannot have any bad effects. Party on!
The idea that it might be a bad effect of the political opponent trying to fraudulently overturn an election doesn't seem to occur.
Ignoring the plain text of the constitution cannot have any bad effects either.
Back when the birthers were complaining about Obama, I said that I thought the merits of their claims were dumb but that they needed to be able to raise them because there SHOULD be a mechanism to enforce the requirements for President. It's not a good idea just to brush it aside because you think the claims are ridiculous. Go ahead and let them raise the claims, then deny them on their merits. Otherwise we wind up at some point with someone who is obviously not Constitutionally qualified but there's nothing we can do.
It's a good point, but it works both ways. A disqualification isn't valid merely because half the population thinks it's "obvious", there needs to be some kind of proper hearing.
If a trial found Trump guilty of insurrection specifically then I'd say there is a good case for state officials to not print his name, if their laws ban unqualified candidates from being on the ballot. Obstruction, perjury, fraud, RICO, improper influence....not good enough.
To take out the uncertainty of the "insurrection": if Arnold Schwarzenegger, while he was governor of California, had decided to run for President, or AOC decided to in 2020, would anything stop them from doing so other than the voting public deciding that their candidacy was Constitutionally infirm and refusing to vote for them?
I guess there's a few possibilities here:
1) Some or all of the states have requirements to prove birth citizenship and/or age to be on the ballot. Is this common? At least with regards to the birther conspiracies around Obama's birthplace, it didn't seem like states were actually requiring/validating birth certificates to prove eligibility.
2) Regardless of above, Secretaries of State could decide that they can keep these people off the ballot, but this seems to have the same defects as the post articulates for the Trump insurrection claim, i.e. that there would first need to be some authority for them to do so other than the Constitution itself.
3) Electors could refuse to vote for these people given their ineligibility; this seems unlikely given that the electors would be specifically selected based on their loyalty to the candidate or at least party. And, just as with the voters in the popular election, this relies on the electors making this judgement call as opposed to an enforceable legal mechanism.
4) Congress could refuse to acknowledge the validity of the elector's votes, but whereas the Constitution explicitly provides that Congress can decide whether or not to seat its own members, it's less clear that they have such an oversight role with regards to validly submitted slates of electoral votes (see general consensus over Congress and the VP's role after the 2020 election, and the functions have been made even more ministerial by virtue of the Electoral Count Reform Act of 2022).
5) The courts could decide that the person is ineligible.
As any of this different for eligibility under Article II vs. the Fourteenth Amendment? If there's no way to enforce the 14th Amendment, how is there a way to enforce the other eligibility requirements?
There's also Section 3 of the 20th Amendment, which provides that if a President-elect is ineligible for the presidency then the VP-elect becomes Acting President on Inauguration Day. Under this scenario, the President is a figurehead, unless he later became eligible, with the VP running the executive branch.
This means if Trump was elected President but was determined to be ineligible under Section 3 of the 14th Amendment, his running mate would become Acting President at noon on January 20, 2025. Trump would become President again but would have no powers unless two-thirds of each House of Congress voted to waive Section 3 of the 14th Amendment.
One reason Trump might pick Tim Scott over Kari Lake. In the scenario you mention, Trump would want a VPOTUS=Acting POTUS to carry out his wishes.
Kari Lake would be a great puppet, but the danger is she might get denied office herself as somehow an "insurrectionist". Somewhat harder to make that stick on Tim Scott.
I always thought (and heard) that Tim Scott was gay. Still closeted, but still . . .
I think it is a measure of the growth of my Republican party that I haven't heard it mentioned a single time during this election cycle. Not by anyone in the media; not by any of his opponents or their flunkies. Hopefully, a sign of increased acceptance, rather than "He's small potatoes, and therefore not worthy of attack."
Tim Scott isn’t gay…it’s simply for a Black man to be successful in America they need to be very focused…and he’s a huge mama’s boy and he prioritized her being comfortable in retirement over getting married. And I’ve heard Republicans that oppose him mention that he isn’t married and doesn’t have children as something negative.
“measure of the growth of my Republican party”
That’s the charitable way to look at it. The other way to spin it is that tribalism has become so severe that party loyalty overrides all other things, in both parties.
The moment Tim Scott becomes something other than small potatos, I am sure you'll happily join the pyromaniac brigade to burn him at the stake.
Of course the problem here remains that we don't actually have a mechanism to determine whether or not the President is eligible.
So, once again:
1) If a candidate is nominated by one of the duopoly parties, or seeks the nomination of one of those parties, then he probably will be listed on the ballot even if unqualified for the office he’s seeking.
2) If a candidate is independent, or is nominated by some off-brand party, then no matter how unambiguously qualified that candidate is, he can’t be on the ballot unless he or his party has jumped through hoops erected by the duopoly parties with the specific purpose of limiting challenges to their Tweedledee-versus-Tweedledum game.
Completely agree there is a glaring inconsistency.
But getting down to constitutional fundamentals, it's not clear why parties should have any official role at all. Unlike some parliamentary systems, we vote for people, not parties.
1) The Baude Paulsen paper is right as a matter of originalism
2) This shows why originalism is sometimes absurd.
3) It is also an academic question that I do not expect to go anywhere institutionally.
4) The tantrum the right is throwing is very funny.
I recall that article.
I thought originalism was indeterminate and manipulable, and that this was the reason originalism was wrong.
But the article certainly is bad.
Re-reading the abstract, I see they conclude that "Section Three repeals, supersedes, or simply satisfies...even the free speech principles of the First Amendment" - it seems there's stuff which is otherwise protected by the 1A which nevertheless can bar a politician from office.
But how can one glibly conclude that originalism *clearly* dictates a First-Amendment-negating result? Why not just say it's wrong under just about any system of interpretation?
I'm not really an originalist, but I don't see how the doctrine compels the evisceration of the First Amendment. Help me out here.
One thing that supports your view is the clause limiting Congress to enforcement through appropriate legislation.
What does appropriate mean? The most obvious interpretation is that Congress has a new enumerated power; however, that power doesn’t override general restrictions on how Congress does business.
“Passing” a Section 3 enforcement bill with no quorum present would be inappropriate. Ignoring a presidential veto and declaring it law anyway would be inappropriate. Putting an enforcement tax into the law but originating it in the Senate would be inappropriate. And likewise, violating the First Amendment would be inappropriate. They are all equally constitutional requirements not clearly overridden by the 14th.
Margrave, here is the doctrinal help you need. If the sovereign People decree a result without due process appeal, that settles the issue. That's what sovereignty is, the power to decide at pleasure how to constitute government. Not even the Supreme Court has any legitimate power to set that aside, or even to consider setting it aside. Baude and Paulson seem to have understood that better than most folks on this blog. Seems like that insight might come more readily to a margrave than to some of these others.
“If the sovereign People decree a result without due process appeal”
if
...and repeals by implication are disfavored, at least where the First Amendment is concerned.
"the power to decide at pleasure how to constitute government"
How about the power to pass "an ordinance of reason for the common good, made by him who has care of the community, and promulgated."
No; that's what guns are. Stalin had the same power. And Mao.
There might be, but your partial quote drastically alters the meaning of what they wrote, just as Brett keeps ignoring it.
Which tantrum are you apprehending, exactly?
I'll make sure and tell everyone you're not mad, Kleppe. You're laughing, actually.
Who or what has the authority to declare an insurrection is or has occurred?
Who declared Jan.6 to be an insurrection?
Who has the authority to satisfy the 14th amendment section 3? Most likely Congress, but Republicans were too weak to sustain their outrage long enough to convict in the second impeachment. Various courts, federal or state. Anybody else is going to have to get Congress or courts to go along.
To the second question: the New Mexico Supreme Court, the January 6th Committee, Mitch McConnell, the President of the United States and many, many others.
Jack Marshall denies it was an insurrection.
Didn't the 1/6 Committee fail to keep most of their documentation for their sha...sorry, I mean show trial?
Who or what has the authority to declare that a candidate is not a natural born citizen, or isn't 35?
"The bottom line is that a silver bullet to prevent the re-election of Donald Trump remains hard to find."
Try persuading the public not to vote for him, you absolute cretins. All this talk about keeping him off the ballot is nothing more than a procedural version of an ad hominem. Confront his arguments and persuade the public yours are better. Until you do, he has my vote.
Impeachment is in the Constitution…you must hate the Constitution?!?
Who are you talking about impeached? Trump isn't an elected official.
He was impeached. Unfortunately, Senate Republicans were too cowardly to convict him, which would have made him ineligible for office.
And it is not an ad hominem. He ought to be ineligible because he tried to steal an election and block the peaceful transfer of power, which is a very, very, very high crime.
If impeachment and conviction were enough to make a person ineligible for office, then we wouldn't have had to deal with Rep. Alcee Hastings (D-Fla.). It takes a separate vote (which for some reason the Senate didn't bother taking in Hastings' case) to make a person ineligible for office after impeachment and conviction.
Wowza. You really couldn't bother to read the very next sentence after the one you posted?
Somehow I have a feeling you're not actually that interested in being persuaded of anything if this is how your brain works.
My post would have been the exact same. I didn't include that part because it was repetitive.
It's stupid and unnecessary. Trump couldn't win as an unindicted worst-ever only-once-impeached incumbent president, so barring strange chance he won't be able to win in 2024. In the unlikely event that he does manage to get nominated and win the 2024 election on his platform of lies, retribution and unbridled corruption, then the people will have chosen to destroy this country, and that's a fundamental right whether it's enumerated or not. Our odds of avoiding that are much better than avoiding nuclear confrontation during the Cold War.
In the meantime, I'm all for him destroying the Republican party. Best case, they don't nominate him and he trashes the nominee. Nominating him probably works too.
Comments like this make me laugh, because the same people making them are doing everything they can to keep Trump off the ballot. If they believed what they claimed then they should be doing everything they can to ensure Trump is the nominee. Learn from their actions, not their words.
I'm not doing anything to keep Trump off the ballot. I think he should be on the primary ballot, and on the general election ballot if Republicans are stupid or crazy or weak enough to nominate him.
I want him to be a cursed albatross hanging from the necks of Republicans for as long as possible. Banning him from the ballot would just save the Republicans from themselves; and it's not likely that it would happen in any state that he has a real chance of winning, so it would just feed the grievance maw for no gain.
He's lost a lot of what appeal he had in 2020, and never won a popular vote, so I rate the odds of a second Trump term as lower than the odds of nuclear war I lived with through most of the 1980s. I would rather Trump be a spoiler, and not the nominee, as it's a little safer, but it's not my job to stop that (although I might cross over in my state's open primary, depending on where things are then).
https://www.facebook.com/stephen.m.stirling/posts/pfbid0gsQUdAH3MhL48zvNmaLptvoDchJXFYuCX7mkwqpYT92WStaz5yZhTNv9W6LzjKqVl
"Politics: Obama carried "non-white"() working-class voters by 68 points. In 2020, Biden carried them by 48 points -- still large, but down nearly 20%. According to the latest New York Times/Sienna poll, his margin among them has slipped to 16 points -- a drop of 32 points since 2020, in only 3 years. This is the basic reason that the Biden-Trump rematch is a dead heat now. Democratic gains among white college grads aren't enough to compensate; because the American population is about 2/3 non-college grads, and among Hispanics much more so (about 75%, IIRC).
'This is the basic reason that the Biden-Trump rematch is a dead heat now'
Horse-race crap, especially this far out.
Trump lost by about 42,000 votes in 3 states.
Hey, look, it's the position I took three weeks ago when this came up.
Putting Trump on trial is going to have the same effect as when the Catholic Church condemned “the exorcist”
Be used entirely for self-serving marketing purposes with no regard to the substance of that action? Already happened, is happening and will happen.
"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:"
So, you threaten violence ?
Against werewolves, maybe.
Or, more likely, bacteria.
From: Far From Over: The Beginning of Reconstruction.
What Prof. Muller wrote is fairly complex and discusses several issues related to challenges to presidential candidates' eligibility. However, there are a few points that might contain logical errors or assumptions:
Hasty Generalization: The statement suggests that "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" without providing data or specific examples. This is a hasty generalization that assumes all challenges are similar to past ones in their shortcomings.
Assumed Causality: The statement seems to imply that the reason most challenges to presidential candidates' eligibility don't reach the merits stage is that they fail to clear some other hurdle. However, it doesn't specify what these hurdles are or whether they are intrinsically tied to the 'merit' of the challenge or are procedural issues.
Ambiguity: The term "merits stage" is somewhat ambiguous. It's not clearly defined what reaching the 'merits stage' entails, which could make the statement open to various interpretations.
False Dichotomy: The discussion about using "this specific, pre-existing mechanisms" might imply that if the challenges are not using these mechanisms, they are doomed to fail. This implies a binary situation where, in reality, other avenues might exist that the statement hasn't considered.
Appeal to Authority: The statement references what "Muller notes" without indicating why Muller is an authority on the topic or whether his viewpoint is universally accepted.
Lack of Specificity in Mandamus Reference: The statement ends with a mention of election officials "routinely losing challenges in mandamus" but fails to specify which election cycle it refers to or what kind of unilateral action is being discussed. This could lead to confusion or assumptions about the context in which these mandamus challenges occurred.
Presumption: The statement presumes that the only valid way to challenge a candidate's eligibility is through state law and administrative procedures overseen by state officials. While generally true, this doesn't account for possible federal issues or Supreme Court interpretations that might come into play.
Incomplete Information: While the statement mentions that questions of eligibility are generally controlled by state law, it doesn't address how these state laws may differ or conflict with each other, or with federal law, which could be relevant in a discussion about challenges to eligibility.
Chronological Ambiguity: The phrase "we are fresh off a cycle" could be interpreted in various ways depending on the reader's perspective of what "fresh off" means time-wise, potentially leading to misunderstandings about the context.
Each of these points may warrant further clarification or support to make the argument more logically sound.
In light of the ''unofficial''insurection on Jan 6th 2020, providing the real facts regarding Trump being the head of that planned insurrection and is jailed under RICO, isn't it about time that S3 of 14A be strengthened by aditional Amendments so that in the future there being an automatic consequence of ineligability to hold office again. I'd support a stronger Amendement to S3 14A.