Thursday, January 28, 2021

State Enforcement of Section Three

Gerard N. Magliocca

One question people are asking me is whether the states can enforce Section Three of the Fourteenth Amendment. The answer is yes. Thus, even if Congress does nothing, Section Three claims will be raised over the next few years, including against the former President if he decides to run again. 

Why do I say that states can enforce Section Three? In Griffin's Case, Chief Justice Chase held that Section Three was not self-executing and that Congress needed to create enforcement authority and a process for adjudicating any claims. But he said that about Virginia, which was an unreconstructed state at that time. In other words, there was no recognized state authority there that could enforce Section Three. His holding, therefore, does not exclude a normal state from enforcing Section Three.

States regularly enforce the Federal Constitution''s eligibility requirements for ballot access. The trouble is that state law is probably inconsistent with respect to Section Three. Here's what I mean. Suppose a state statute says that a candidate for the House of Representatives must meet all of the eligibility requirements in the Federal Constitution for ballot access. Can Section Three be viewed as an eligibility requirement? Yes it can, though the point is contestable. Thus, a state Secretary of State enforcing the Constitution and state law would be within her authority to deny ballot access to someone on Section Three grounds. The candidate excluded could then challenge that determination in the courts. But some state election laws probably refer only to the eligibility requirements for the House of Representatives listed in Article One, Section Two. Why? Because until a few weeks ago nobody gave any thought to Section Three of the Fourteenth Amendment. In that kind of state, the Secretary of State may lack the authority to enforce Section Three unless state law is changed. (One would think that some states will update their statutes to make a specific reference to Section Three, but who knows.)

Where does this leave us? Some states can enforce Section Three and some arguably cannot. Some states will enforce Section Three in a partisan way and others not. Some states will limit standing for those who want to challenge a determination that someone is eligible to run notwithstanding Section Three. This may mean that some of those determinations will be, in practice, unreviewable. And so on.

At the presidential level, this haphazard system will be a disaster. If the former President decides to run, some state Secretaries of State will say that he is eligible and others will say that he is not. He could challenge an exclusion, but it's not clear who could challenge his inclusion. Maybe, though, the former President will not challenge his exclusion in a state that is small or that he thinks he won't win anyway. (Blue states are obviously more likely to say that the former President is ineligible.) This could lead to a circumstance like 1860, where Lincoln was elected even though he was not on the ballot in many states. Or it could mean that only person with standing to challenge the former President's inclusion on a ballot would be his Democratic opponent, with a lawsuit decided in the Supreme Court during the election year.

Accordingly, the question for Congress is not whether Section Three of the Fourteenth Amendment will be an issue in some upcoming elections. It will be. The question is whether will want an orderly process to address these claims (set up by Congress) or a disorderly one (run state by state).   

UPDATE: As I indicated in a prior post, there are examples of states enforcing Section Three after 1868, though those actions were all against officeholders rather than candidates.


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