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Thursday, August 26, 2021

State Law and Section Three of the Fourteenth Amendment

One possible scenario in 2023 goes something like this: Donald Trump declares that he is a candidate for President. Some state election officials rule that he is ineligible to run under Section 3. He sues and the constitutional issue is litigated.

But there's a problem with this scenario. As far as I can tell, no state ballot law mentions Section Three as an eligibility requirement to run for President. I've happy to be corrected if I'm wrong, but even if I am surely few states mention Section Three in their ballot access laws. Thus, Donald Trump can argue that the state officials lack the authority under state law to exclude him from the ballot.

The state officials could say that they don't need express authority under state law because they are enforcing the Federal Constitution itself. But this argument runs into problems. For example, is Section 3 self-enforcing, or must there be a statute somewhere that confers enforcement authority? There is authority both ways. 

Of course, some states might decide to amend their election law to include Section 3 and thus eliminate the problem I've just described prior to 2023. But none have yet done so.

Posted by Gerard Magliocca on August 26, 2021 at 02:00 PM | Permalink


Interesting issue.

This is pretty complicated. But not to forget, at first place, some argue, that the section can't be implied on presidency. I quote from research done by Congress Research Service (see link):

" There may be an argument that because the President is not covered explicitly by the provision, the presidency itself is exempt from the disqualification. In contrast, for example, the Impeachment Clause of the Constitution applies to the “President, Vice President and all civil Officers of the United States,” which suggests in that clause, the President might not be a “civil Officer of the United States.” However, it may be more likely that the President is included as an officer of the United States (unlike Members of Congress and electors, which may be why they are expressly included)."

End of quotation:

Even so, the president, can ask federal court, to invalidate such state law. And, there are federal statutes also, in parallel to section 3.

It is very recommended to read that research.Here:



Posted by: El roam | Aug 26, 2021 4:37:55 PM

Many states do not expressly include *any* qualifications in their ballot access laws. Among the few that do, they ask candidates to certify that they are at least 35 years of age, 14 years a resident, and a natural born citizen.

There's extensive case law throwing out challenges to, say, Ted Cruz's eligibility on the ground that there's no state law hook to do so and that the Constitution is not self-executing when it comes to ballot access rules. (This makes sense because, until the 1880s, tickets were printed by parties or candidates, or votes were written in or by voice. The state did not operate the ballot.)

I cover some of this in my work on "Scrutinizing Federal Electoral Qualifications" (Indiana Law Journal) and "'Natural Born' Disputes in the 2016 Presidential Election" (Fordham Law Journal).

In short, you're right--states need to enact statutes on this matter if they want to exclude. Some considered elevating presidential ballot access rules for natural born citizens over the years (e.g., "long form" birth certificate requirements), but those have been disfavored.

Posted by: Derek Muller | Aug 26, 2021 3:19:23 PM

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