Ballot Access Challenges vs. Election Contests

Gerard N. Magliocca

I want to make a practical point about what we may see after the Court's opinion in Trump.

One way to frame the case is that this is a ballot access dispute. Justice Kagan cited Anderson v. Celebrezze, which imposed a federal constitutional limit on a state's ability to deny a presidential candidate ballot access. Another frame is that this is about whether states can enforce Section 3 against presidential candidates (or against candidates for federal office) without congressional authorization. A third option is that this case is about whether a federal cause of action is required to enforce Section 3.

If the Court says that this is only a ballot access issue, then that leaves open the possibility of a post-election state contest challenge on a Section 3 claim. There are important functional differences between a ballot access claim and a contest claim. First, voters cannot bring a contest--only candidates can. Second, the lack of uniformity that bothered the Court so much disappears. Everyone gets to vote for the same candidates. The Electoral Count Reform Act then provides a federal forum for state contest cases based on a federal constitutional claim. You won't have different states using different procedures and reaching different results. There will just be one federal lawsuit decided on an expedited basis. Plus, Congress is required by the Act to accept whatever decision the federal courts make.

If the Court says that you need a federal cause of action to enforce Section 3, then the only way to raise a Section 3 challenge would be in the Joint Session of Congress. The Electoral Count Reform Act does not create a cause of action. As I discussed yesterday over on the Election Law Blog, Congress assumed in that Act that every federal constitutional challenge to a state presidential election certification could be brought under state or federal law somehow. But that assumption could turn out to be wrong.

What if the Court says that states cannot enforce Section 3 unless they are authorized by Congress to do so? The outcome there is less clear. The Electoral Count Act can be read as congressional authorization for such a claim, but only for presidential candidates. But that would require an interpretation of the Act, which is, of course, new and untested.