Countdown to New Hampshire

The New Hampshire presidential primary will be held one year from now. Where will the legal challenges to Donald Trump's eligibility to run (under Section Three of the Fourteenth Amendment) stand then?

Unfortunately, there will probably be no conclusive answer on Trump's eligibility before the first contests in Iowa and New Hampshire. This is due to the differences among state election laws and the calendar for the caucuses and primaries. While litigation challenging Trump's eligibility will be underway in January 2024, the odds of a final resolution of those challenges by then is low.

What will be the consequences of that uncertainty? There are two possibilities. One is that the media and GOP candidates will be free to tell voters in the early contests that they might be wasting their vote if they vote for Trump. Why? Because eligibility litigation is ongoing in other states and the Supreme Court has not weighed in. The other possibility, which is even worse, is that one or more other jurisdictions will have declared that Trump is NOT eligible to appear on their ballots pending appellate review. This would make the "you're wasting your Trump vote" argument more compelling for some and more confusing for others.

This mess can still be avoided if Congress enacts Section Three enforcement legislation and provides a single, expedited process in federal court to review Trump's eligibility to run. The clock is ticking.