Balkinization: Twenty-Second Amendment Musings

Twenty-Second Amendment Musings

David Super

Several people have been suggesting that former President Trump should be barred from running for president next year because section 3 of the Fourteenth Amendment, which provides that: “No person shall … or hold any office, civil or military, under the United States …, who, having previously taken an oath … as an officer of the United States … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same… .” They argue that Mr. Trump’s efforts to overthrow the 2020 election, culminating in the armed insurrection of January 6, 2021, meets that test and disqualifies him from office.

I have a much more modest question. Although some state laws delegate to the political parties the decisions about whose name may appear on ballots, others contain provisions to keep candidates from appearing on the ballot if they are ineligible to serve.

For example, section 298.660 of the Nevada Revised Statutes states: “If a person who is a qualified candidate to be a major political party’s nominee for President of the United States wants to appear on the ballot for a presidential preference primary election … the person must … file with the Secretary of State a declaration of candidacy in the form prescribed by the Secretary of State.” (Emphasis supplied.)

Section 8.30(1)(b) of the Wisconsin Statutes authorizes election officials to “refuse to place the candidate's name on the ballot if … [i]t conclusively appears, either on the face of the nomination papers offered for filing, or by admission of the candidate or otherwise, that the candidate is ineligible to be nominated or elected.” (Emphasis added.)

Under the Twenty-Second Amendment, no person is eligible to be elected president if he or she has been “elected to the office of the President … twice”. President Trump has repeatedly and vociferously claimed that he has twice been elected to the office of President. If that is true, he is ineligible to serve.

Election officials in states like Nevada could reasonably require anyone seeking to appear on its presidential ballot to sign a sworn statement that he or she is a native-born citizen of the United States, is at least thirty-five years old, and has not been elected to the office of President more than once before. Election officials in states like Wisconsin could conclude that Mr. Trump’s own statements conclusively demonstrate that he is ineligible to be elected president and seek his sworn retraction of those statements.

I personally do not believe Mr. Trump has been twice elected president. But he says he has. He should not be permitted to continue to assert facts that make him ineligible to run for president while simultaneously running. I have no doubt that, if his prospects depended on his doing so, Mr. Trump would admit that he was not elected president in 2020. It would be good for the country if he did so.

@DavidASuper1

Posted 2:34 PM by David Super [link]