The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
What If Trump v. Anderson Is Treated Like an Election Law Case?
An interesting analysis of the former President's brief challenging his disqualification from the ballot in Colorado.
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 are 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.
it seems increasingly likely, to me, that if the Supreme Court rules in Trump's favor (and by if, the likelihood seems to be declining), it will be on an election law ground related to ballot access rather than a substantive Section 3 analysis.
If one goes back to see how Madison Cawthorn and Marjorie Taylor Greene handed the challenges to their eligibility back 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 collateral cases in federal court; they secured some delays and temporary victories; they secured sympathetic opinions from judges at the courts of appeals that leaned into some of their arguments on election law issues on the power of Congress to judge qualifications of its members, squarely the kind of election law issue that is a threshold to any substantive Section 3 analysis.
Trump, however, has handled the cases very defensively. He never filed collateral proceedings in federal court on election law issues. He's largely settled into framing the case along the lines the plaintiffs have framed it, as a constitutional law case under Section 3. . . .
It would seem that this significant ballot access dispute would attract a lot more election law attention. But it has not. Indeed, very few election law scholars have weighed in and the amicus briefs, and those that have with in support of neither party, reflecting some hesitation, to some degree, 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 merits brief. And I think it seems increasingly likely (in my judgment, anyway) that while this case has not been principally litigated as an election law one, it might end up that way, if the court is inclined to rule in Trump's favor. But if it does not move in that direction. I think it's going to be very difficult for Trump to succeed on the merits, and it seems increasingly likely that the Court will hold that he could be barred from the ballot on the merits of Section 3. Indeed, watching the litigation unfold, my sense today is that Trump's chances of success are lower than they've ever been.
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 him 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.
