Advisory Opinions on Section Three of the Fourteenth Amendment

State courts, unlike federal courts, can give advisory opinions if their state constitutions permit. And some state constitutions do authorize their highest court to give advisory opinions in some situations.

This leads to the following thought. In an appropriate state, an appropriate official could ask the state Supreme Court for an advisory opinion on whether Section Three of the Fourteenth Amendment bars Donald Trump from the presidency. This could be done tomorrow, and in some states one house of the state legislature can request an advisory opinion. Whether such a request must be answered by the court would also turn on state law, but in some state the stars might align to get at least one prompt answer.

Seeking an advisory opinion on federal constitutional law from a state court may sound strange. But in the context of a presidential election such a request would be appropriate because of the central role that states play in selecting presidential nominees and presidential electors.