Disqualifying Trump wouldn't necessarily remove him from the political stage

The House of Representatives has impeached Donald Trump for inciting insurrection at the Capitol when Congress was counting electoral votes. The Senate may convict him of that charge. If it does, it will decide whether to disqualify him from “any office of honor, trust, or profit under the United States,” which likely (I think) includes the office of the president.

There are important reasons for the Senate to consider convicting and disqualifying Mr. Trump, and the stigma of disqualification might prevent a future candidacy. But this penalty isn’t a magic trick that would make Mr. Trump disappear from the political stage. It wouldn’t bar him from fundraising for a future presidential candidacy or from appearing on the ballot in a future election. And the question may ultimately return to Congress one day when it counts electoral votes.

The Constitution requires that the president must be at least 35 years old, a natural born citizen, and a resident of the United States for 14 years. There are other tacit requirements, too—for example, one must be alive instead of dead, and a person instead of, say, a dog or a cat. Disqualification from office after impeachment would be another condition.

These eligibility requirements are usually self-policing. Underage or non-citizen candidates rarely attempt to run for president, and major political parties winnow out ineligible candidates. Other disputes over eligibility, like whether Canadian-born Senator Ted Cruz was a “natural born citizen,” never became serious problems because candidates lost elections.

A candidate who runs for president must file with the Federal Election Commission to disclose campaign contribution and expenditure data. But the FEC doesn’t have power to determine whether candidates are eligible.

In 2011, a naturalized citizen, Abdul Hassan, sought to run for president. He admitted he wasn’t a natural born citizen but asked the FEC if he could still run. An advisory legal opinion from the FEC concluded that campaign finance law allowed him to solicit funds for his campaign, and that he wouldn’t be engaging in fraudulently misrepresentation if he did so.

Any candidate, eligible or ineligible, can run a presidential campaign in the United States. Ineligible candidates would not violate any campaign finance laws by soliciting financial contributions or running for president. Congress would need to amend campaign finance laws to bar ineligible candidates from fundraising for office.

Candidates running for office must also file paperwork in states to assure their names appear on the primary and general election ballots. Many states do not investigate the qualifications of candidates seeking elected office. They trust candidates, voters, and political parties to make those judgments and act appropriately.

It’s up to states to decide whether to enact laws to exclude disqualified candidates. But ineligible presidential candidates do sometimes appear on the ballot. Róger Calero, for instance, is a Nicaraguan who resides in the United States and was the Socialist Workers Party candidate for president in 2004 and 2008. He’s not a citizen, much less a natural born citizen, but he appeared on the ballot in New Jersey, New York, and other states in two elections. Or consider Peta Lindsay, who was just 28 years of age when she ran as the Socialism and Liberation Party nominee in 2012 and earned 7791 votes across nine states.

Some states do exclude unqualified presidential candidates. For instance, Colorado requires candidates to affirm under oath that they are qualified. In 2012, Mr. Hassan couldn’t affirm that, and he sued. Then-Judge Neil Gorsuch wrote a judicial opinion affirming the state’s right to exclude Mr. Hassan from appearing on the ballot.

But others have tended toward mischief. After false rumors swirled in 2008 that Barack Obama was not born in the United States, some state legislatures introduced legislation that would require candidates to show their birth certificate as a condition of appearing on the ballot. None became law.

In the event a disqualified candidate appeared on the ballot, he might receive electoral votes from a state, and those electoral votes would be sent to Congress to count. In 1873, Congress refused to count three electoral votes from Georgia cast for Horace Greeley, a candidate who died after Election Day but before the electors met. Congress rejected votes cast for an ineligible candidate.

Under the Electoral Count Act, a member of the House and a member of the Senate may object to counting votes that were not “regularly given.” Both houses of Congress would then need to agree to reject the votes cast for an ineligible candidate.

That means Congress might ultimately be forced to evaluate Mr. Trump’s eligibility when it counted electoral votes.

Yes, during that meeting.

California Supreme Court unanimously finds presidential tax return disclosure requirement violates state constitution

A federal district court already found that California’s new law requiring presidential primary candidates to disclose their tax returns as a condition of ballot access violated several provisions of the United States Constitution. The case is being appealed to the Ninth Circuit, and there was little rush to have the law take effect for 2020.

Now, the California Supreme Court has weighed in with a unanimous decision finding that the state constitution precludes the tax disclosure requirement, too. The California Constitution includes a provision enacted by initiative that requires “recognized” candidates to appear on the primary ballot; this tax return disclosure requirement, the court reasoned, exceeded the legislature’s power. (Justice Mariano-Florentino Cuéllar wrote a brief concurring opinion to indicate his concerns about corruption.)

While my recent draft article emphasized only one facet of these ballot access disputes—whether such conditions are legitimate “manner” restrictions or whether they exceed the state’s power under the Elections Clause and Presidential Electors Clause—I noted that state constitutional law might be an alternative basis for these claims. And here’s one such example.

What might a constitutional amendment capping the age of the President look like?

I recently published an op-ed in the Wall Street Journal suggesting that we should consider a constitutional amendment capping the age of the president.

Undoubtedly, the decision to amend the Constitution is significant, and the decision to do so by limiting voters’ choices even more so. The Constitution does limit our choices for president, however—there’s an age minimum of 35, the natural born citizen requirement, and the 14-year residency requirement. The 22d Amendment was enacted to forbid candidates who have served two terms (or 10 years’ service) from taking office—even though the people had just elected Franklin Delano Roosevelt to four terms.

But if voters lack adequate information about candidates’ health (as I argue in the piece), and health-related risks increase significantly with age, we may want to cap the age of the president.

Here’s a proposal for a constitutional amendment:

Section 1. No person shall be elected to the office of the President who shall have attained to the age of seventy-five years on the date on which the term of office begins.

In the opinion piece, I offer 70, 75, and 80 as possible benchmarks. I like 75 for a few reasons. First, Ronald Reagan was elected at 69, reelected at 73, and left office at 77. Like a two-term limit patterned after George Washington, an age-related requirement closely mirroring Mr. Reagan has a nice practical background. At 75, it’s a number that nicely mirrors 35. (Okay, so I’m too into the aesthetics….) Finally, it requires a president to leave office before turning 80, which starts to feel (?) like an upper bound.

The amendment is patterned off language in Article II and the 22d Amendment. It would allow a 70-year-old to seek two consecutive terms of office, and a 74-year-old to seek one.

It uses the word “elected,” which means, I think, that a vice president could be older, or someone from the cabinet who ascends to the office of president could be older. It simply means those individuals could not be “elected” to the office of President. And it fixes the date of age at the time the term of office begins.

Of course, such a hard number is going to be overinclusive and underinclusive. But if it’s a matter of risk tolerance, it strikes me that this is a pretty good marker.

Some might point to the extremely short life expectancy at the Founding, but I think those figures are deceptive. Life expectancy was short because of infant mortality. If you made it to the age of 21, your life expectancy, particularly among the upper class, was not much shorter than today. Indeed, among our first several presidents, most died late in life—Mr. Washington at 67, John Adams at 73, Thomas Jefferson at 83, James Madison at 85, James Monroe at 73, and John Quincy Adams at 80.

The requirement would undoubtedly alter how presidential campaigns would run. Candidates would recognize that they have a “window,” one that might “close” if they wait too long. But I think having two generations to seek the office of president is a sufficiently long window for most candidates.

I think the office of President is unique because it is a single-headed executive. It might be, of course, that we have concerns about other federal positions. So here are some proposals to add to this amendment.

Section 2. No person shall be elected to Congress who shall have attained to the age of eighty years.

Section 3. No person shall hold the office of judge of the supreme or inferior courts who has attained to the age of eighty-five years. Any judge holding that office who has attained to the age of eighty-five years shall no longer hold that office.

Section 2 would cap the age of members of Congress. It would serve as a soft term limit—much better than the deeply restrictive suggestions proposed recently of things like two- or three-year limits. In the Senate, a person could be elected at 79 and end the term at 85. In the House, it would be 79 and 81.

Right now, there are just two senators over the age of 85 (Dianne Feinstein and Chuck Grassley) and three others over the age of 80. In the House, there are 9 representatives over the age of 80—some elected as far back as 1973, the most recent elected in 1999. It would effectively offer rotation for some members of the House. It also allows a governor to appoint an over-eighty Senator if a vacancy occurs, consistent with the 17th Amendment—that Senator simply couldn’t be elected. It also reduces vacancies that arise from death given that very senior members would not be serving in Congress.

On the federal judiciary side, many federal judges already go “senior” at the age of 65 or so anyway. It would simply pull those—and all other—judges out of active service at the age of 85, which is fairly late in a career anyway. There are concerns that occasionally arise about the age of district court judges in particular, which this amendment would address. It would also compel retirements of Supreme Court justices upon turning 85 (two current justices are over that age). It might lead to younger-than-ever Supreme Court nominees, or strategic timing of retirements… but let’s face it, those are already occurring.

I’m sure many might quibble or wonder about these precise contours. Or maybe you’ve identified weaknesses I haven’t considered. But these are, I think, worth considering.

In today's WSJ: "No Country for Old Presidents"

In today's Wall Street Journal, I have an opinion piece entitled, “No Country for Old Presidents.” It begins:

Should there be an upper age limit on the presidency? Former New York Mayor Michael Bloomberg, 77, may join a crowded and aging field of candidates. Last month Bernie Sanders, 78, was hospitalized with what the campaign called “chest discomfort” and turned out to be a heart attack. In September 2016, Hillary Clinton, then 68, was privately diagnosed with pneumonia. The campaign concealed the diagnosis until she was caught on camera fainting from dehydration.

Mental health is another concern. “Gaffes” on the campaign trail drive observers to wonder whether the slip-ups reflect a candidate’s age and are a sign of some greater health concern. Voters have no way of knowing.

It concludes:

The Constitution sets a minimum age of 35 to serve as president. Maybe it should be amended to set an upper age limit at 70, 75 or 80. Like the 22nd Amendment limiting presidential terms, such an amendment shouldn’t take effect immediately, lest it affect the outcome of the 2020 race. But it’s worth having a conversation about age for future presidential candidates before an age-related crisis strikes a president.

I’ll have more about what a constitutional amendment might look like soon.

Federal judge finds tax return disclosure requirement for ballot access cases violates Elections Clause, First Amendment, and Equal Protection Clause

A federal court in California issued its order (PDF) after enjoining California’s tax disclosure requirement for presidential candidates. Earlier, I noted the court suggested that California’s statute was preempted by the Ethics in Government Act. The court did make that finding. But the court also found it unconstitutional on three other bases.

First, the statute runs afoul of the Elections Clause, meaning California lacked the power to add this rule as a condition of ballot access. (This is the argument I make in Weaponizing the Ballot.) It relies on Term Limits v. Thornton and Cook v. Gralike, in addition to a Ninth Circuit opinion Schaefer v. Townsend that struck down a voter registration requirement as a condition of ballot access.

Second, the court concluded it burdened the associational interests of candidates, voters, and political parties under the First Amendment. The court concluded the burden was “severe” because it was a “functional bar” on candidates who refused to disclose tax returns, a “severe” burden that the state failed to justify.

Third, the court held that it violated the Equal Protection Clause by “distinguishing among constitutionally eligible candidates,”—that’s because general-election independent candidates would not need to disclose their tax returns, but primary candidates would.

In short, the court found four separate reasons why the law failed. We’ll see what happens as this case proceeds to the Ninth Circuit—given that time is precious as the ballot petition period begins in a matter of weeks, and given that the California Supreme Court is considering an independent challenge, we’ll see what choices the parties and the courts make moving forward.

The Vermont Supreme Court oral argument in Cruz and Rubio "natural born citizen" litigation

You may have long forgotten about the "natural born citizen" litigation in the 2016 presidential election, which I chronicled this spring. One can be forgiven, because, as hot as the topic was, Ted Cruz dropped out of the race, most cases disappeared, and little has been thought about the matter (much less about the even more tenuous and rare litigation surrounding Marco Rubio). My forthcoming Fordham Law Review piece chronicles the procedural paths these cases took, urging courts to exercise caution before needlessly plunging into disputes that the political process could readily solve, or areas where the state legislature failed to give them express jurisdiction.

Procedure took center stage in Vermont.

The plaintiff, H. Brooke Paige, was one of the first to file a claim challenging Messrs. Cruz's and Rubio's status as "natural born citizens." Mr. Paige filed pro se and sued both candidates and the state of Vermont. The case was dismissed. Mr. Paige appealed, again pro se. And the Vermont Supreme Court scheduled 30 minutes of oral argument for November 30, 2016. Messrs. Cruz and Rubio waived the opportunity to appear at oral argument. The oral argument has been uploaded.

The Vermont Supreme Court did care about procedural matters and asked Mr. Paige almost exclusively about those procedural points. First, as neither Messrs. Cruz nor Rubio were on the general election ballot, one justice wondered whether the dispute was moot--but Mr. Paige emphasized they were on the primary ballot. (Later analogies to abortion mootness exceptions arose.)

Another justice asked that the Constitution has a requirement as to who can serve as president; but does that extend the same as to who can run for president? Mr. Paige identified them as the same standard.

As to standing, Mr. Paige claimed he sought ballot access in Vermont.

The government opened with a mootness claim, which the Court challenged, but the government answered that while mootness could be an issue in election cases, it was not a problem in this case, where the plaintiff was responsible for many of the delays.

The government then noted the speculative future of the claim and the breadth of citizenship claims that might need to be raised. When the court later noted that its previous mootness case included the fact that Barack Obama was ineligible for another election, the government tried to raise the greater speculative nature of the political process. But the court pressed back that "capable of repetition yet evading review" inherently speculate about the future.

The court also mused that this exception often refers to the plaintiff's injury, as in the case with abortion cases; but, the court noted, if he has standing, what are the odds the plaintiff would face an election against someone born to foreign-born parents? That, the court said, might be a different case, as it seemed quite likely Mr. Paige would run again and face someone in that citizenship posture. But, another justice pressed back that it seemed like an advisory opinion, as it would be conditioned on "if" Mr. Rubio or someone else ran for office.

The court then asked about standing--a statute says that an election may be contested by any voter in the process. The government described the standing as something ministerial, such as the conduct of the election itself; or to matters like voter intimidation. But those are about the validity of the election, the government said, and the statute does not extend to challenges about qualifications.

The government moved back to the questions of Mr. Paige as a candidate challenging Messrs. Cruz and Rubio and argued that he was not truly a competitor in the election, such that he did not have standing.

The court started to worry about competitor standing--suppose Mr. Obama ran for governor in Vermont as a resident of Illinois? The government conceded that his general election opponent might have standing in that case.

All in all, the court muddled through a series of standing, mootness, and statutory issues, with virtually no time spent on the merits. It's unlikely we'll see any surprises... but only time will tell.

Is the Green Party's vice presidential nominee Ajamu Baraka ineligible for office?

Perhaps you thought the constitutional eligibility concerns for 2016 had reached their end (and you'd no longer have any reason to read my article on the process behind challenges over such disputes), but perhaps they continue....

Jill Stein, the presumptive Green Party nominee, just named her vice presidential running mate--Ajamu Baraka, a Chicago native and human rights activist who now lives in Atlanta.

But quite recently, Mr. Baraka lived in Colombia. A 2015 blog entry on his site describes him as someone who lives in Cali, Colombia. And other media mentions around that time mention him as someone from Colombia.

The eligibility concern relates his residency at that time. (Recall that vice presidents must not be ineligible for the office of president.) Article II provides among other qualifications that a candidate must be "fourteen Years a resident within the United States."

There is some evidence, but certainly not unanimous, that these fourteen years must be accumulated consecutively prior to securing office. But there is some evidence that the requirement can be met cumulatively, over the total course of one's life prior to securing the office.

Additionally, there is the question of what "resident" means. Does living for a stretch of time in Colombia mean one is no longer a "resident" of the United States? It may well mean something like domicile, and a temporary, even extended, presence in another country would not thwart such residency. (James Ho succinctly summarizes some of these views here.)

In short, there is probably good evidence that Mr. Baraka was a resident fourteen years consecutively, and even if he wasn't, that the Constitution permits such residence to be acquired cumulatively. But in the event one concludes that the Constitution requires consecutive residency and that his time in Colombia broke up that residency, then Mr. Baraka would be ineligible.

That might lead to interesting disputes in the event someone sought to challenge Mr. Baraka to keep him--and half of the Green Party's ticket--off the ballot in states that permitted such challenges. Might--one never knows where such challenges to candidate eligibility may lead.

Recent developments in 2016 presidential eligibility challenges, Part II

For aggregation of coverage, see here.

Last week, the New York State Board of Elections concluded that it lacked jurisdiction to review any challenges to Ted Cruz's qualifications. This should come as little surprise. New York has long viewed its role in ballot access disputes regarding federal qualifications as purely ministerial. After all, Roger Calero, a non-citizen (indeed, a Nicaraguan citizen), has appeared on the presidential ballot multiple times in New York. (The archived webcast is available here.)

Additionally, a new challenge was filed in Pennsylvania state court last week.

Today, a federal judge dismissed a complaint filed in the Eastern District of Arkansas against Mr. Cruz and Marco Rubio. The court found that the voter who filed the suit lacked standing and that voters generally lack standing in such disputes.

Finally, this week has a couple of matters pending.

Tuesday, March 1: a Cook County, Illinois judge will continue an earlier hearing regarding the status of a lawsuit that appealed the decision of the state board of elections to permit Mr. Cruz's name on the ballot. The state court judge had appeared inclined to throw out the lawsuit on procedural grounds.

Thursday, March 3: an Albany, New York judge will hear a challenge regarding eligibility. (UPDATE: The hearing was moved from Tuesday to Thursday.)

Friday, March 4: a Broward County, Florida judge will hold a hearing regarding Messrs. Cruz's and Rubio's motions to dismiss.

Earlier coverage:

Part I

Recent developments in 2016 presidential eligibility challenges, Part I

Since I've begun aggregating the status of challenges to presidential candidates' eligibility, media outlets and commentators have had a few impressions from such challenges, but a few points are in order.

First, filing a challenge or a lawsuit doesn't mean much, despite breathless media reports to the contrary. There were dozens of challenges to Barack Obama and John McCain; most when nowhere, and a few that went somewhere had no impact on the ballot. Many of these disputes will die rapidly--the plaintiff sued the wrong party; the plaintiff lacks standing; the plaintiff lacks a claim under state law; the plaintiff failed to serve notice on the proper parties. These are just a handful of the reasons most of these lawsuits will end rapidly. And even a court agreeing to "hold a hearing" doesn't mean much. I imagine most of these end with a whimper without coming close to addressing the merits of whether any candidate is a "natural born citizen."

Second, the key places to look at the moment are not in courts, but at the election commission. Last week, for instance, the Indiana Election Commission voted 3-1 to keep Ted Cruz's name on the ballot. It was a rather remarkable discussion. Indeed, it might have been an even closer vote, but one member who expressed deep skepticism ultimately voted to keep him on the ballot. Nonetheless, it was still a surprise (to me!) that one member of the Commission voted to keep him off the ballot. He remains on the ballot, of course--so no real, lasting harm.

Third, there has been a new interest in challenges to Marco Rubio's eligibility. Mr. Rubio was born in Florida to two Cubans residing in the United States. Most of the challenges aggregated above include challenges to Mr. Rubio as well, alleging that someone born on U.S. soil to two non-citizens is ineligible to serve as president. Virtually all commentary rejects this claim (only Mr. Cruz's eligiblity has invited meaningful commentary suggesting he is not eligible). Nevertheless, Donald Trump, who at one point firmly believed Mr. Rubio was eligible, raised doubts about eligibility. Whether it spurs more challenges is another matter.

Fourth, an independent candidate running for president, Terry Wayne Wheelock, had filed a motion to intervene in a federal lawsuit in Texas over Cruz's eligibility. A federal judge struck the motion for failure to state the grounds for intervening.

Finally, this week has a couple of matters pending.

Tuesday, February 23: the New York State Board of Elections will consider three eligibility challenges to Mr. Rubio and Mr. Cruz. There is a good chance all three will be tossed for procedural reasons--at least two were filed past the deadline; and there is a claim that New York law does not permit the board of elections to review qualifications, and certainly not of primary candidates.

Friday, February 26: a federal judge in Arkansas will decide whether the plaintiff in Librace v. Martin can file in forma pauperis. (The Arkansas Secretary of State has argued that the plaintiff has filed multiple frivolous election cases before.)