The Twentieth Amendment, passed in 1933 to change the inauguration date for presidents from March to January, seems to say that both voters and presidential electors are permitted to vote for individuals who don’t meet the constitutional qualifications. It says, “If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President has failed to qualify, then the Vice President elect shall act as President until a President shall have qualified.”
The clause “or if the President has failed to qualify” shows that the authors of this constitutional amendment imagined that the voters might have chosen someone who doesn’t qualify. Therefore, logically, it seems they believed that the voters (and presidential electors as well) should have the ability to vote for someone who isn’t qualified; otherwise there would never been an instance at which the president-elect “failed to qualify.”
In 1972, Linda Jenness, the Socialist Workers Party candidate for president who was only age 31 at the time, waged a court battle to be allowed on the Ohio ballot, despite being under-age. Her attorneys relied on this language in the 20th amendment in their federal lawsuit, Jenness v Brown, s.d., civ-72-204. U.S. District Court Judge Joseph D. Kinneary brushed off this argument by saying, in an unreported decision, that the purpose of the 20th amendment was not to change the age qualification, a statement that is not really responsive to Jenness’ argument.
The December 21 Wall Street Journal has an op-ed, mentioning this language in the 20th amendment, by John C. Harrison and Saikrishna Prakash. It is behind a paywall. It does not mention Jenness v Brown, but it makes the same argument that Jenness had made.
December 21 Wall Street Journal op-ed “If Trump Is Disqualified, He Can Still Run: Colorado’s Supreme Court overlooks the 20th Amendment”
Link to archived version (no paywall): https://archive.ph/P6bOU
If there’s enough support for Trump within the Republican Party why don’t they separate from the government and work out their convention delegate allocation process privately?
Thank you, Hector.
That’s exactly what they might do via the caucus process, but you seem to assume the Colorado ruling will hold up or be replicated in enough states to matter? Both apparent premises are highly dubious at best .
Although the Colorado case was about Trump being on the Republican presidential primary, the logic of the decision applies to the general election also.
Some of the illogic of the decision applies to the general election, but some is uniquely illogical to the primary (while it could perhaps be argued that collegial electors are officers under the united States, arguing that convention delegates are is even more absurd) .
“Although the Colorado case was about Trump being on the Republican presidential primary, the logic of the decision applies to the general election also.”
Which brings up the old question, can a state prohibit write-in votes?
WZ
14-2 FOR SPECIFIED OFFICES– IGNORED SINCE 1868
FAIL TO QUALIFY —
1. 12 AMDT — FAILURE TO CHOOSE A PREZ
2. 2-1-5 — ESP AGE 35 AND 14 YEARS RESIDENT – LESS ABOUT NBC/NAT FATHER.
——–
BE ON 24/7 ALERT FOR CO CERT PET FILING IN SCOTUS — ANDERSON V GRISWOLD
I’m not sure the 20th Amendment saying “here’s what happens if an unqualified candidate wins” necessarily implies voters and electors have an affirmative right to vote for an unqualified candidate, or that unqualified candidates have a right to ballot access.
Somewhat similarly, the Constitution much more explicitly assigns judging the qualifications of its members to each house of Congress, so that’s something they can still invoke at the end of the electoral process against somebody who’s otherwise won. But it would be very weird if states therefore had to allow on the ballot for U.S. Senate a 19-year-old non-citizen who lives in another state, or even another country. Maybe being that absolutely unrestricted with ballot access is the right policy choice in principle, and it would track closest to the free-for-all of how party tickets worked in the era before official ballots. But I’m not convinced the Constitution requires it by this sort of indirect implication.
But it is an interesting and relevant point to consider. The same part of the 20th Amendment came up during Electoral Count Act reform, and looking forward to potential objections on Jan 6, 2025, about how it should work and what it means if Congress determines the apparent winner is ineligible to take office. It matters because the 20th establishes the correct result is it should go the VP-elect, assuming they’re qualified. That is, the disqualified candidate’s running mate, not their opponent and not sending it to a contingent election in the House.
Andy Craig, why would that be “very weird,” and what would be the purpose of having congress judge qualifications if states are supposed to judge them ahead of time?
I’m a Barbie girl in a Barbie world
NOOO JUDICIAL POWER IN 12 AMDT TO HAVE CONGRESS HACKS RULE ON PREZ/VP QUALIFICATIONS
ONLY *** COUNTED *** EC VOTES.
— OBVIOUSLY
1. EC VOTES IN STATES/DC MAY BE ILLEGAL THAT CAUSE 12 AMDT EC HACKS TO BE CHOSEN,
2. PREZ/VP PERSONS MAY BE ILLEGAL [LACKING QUALIFICATIONS – ARE DISQUALIFIED VIA 14-3 AMDT]
—
ALL MORE REASONS TO ABOLISH THE MINORITY RULE EC ROT PROCESS.
USA CONST *POSITIVE* DEFINE VOTER IN ALL ELECTIONS ——
USA CITIZEN AND 18 PLUS YEARS OLDE ON ELECTION DAYS , BE REGISTERED BY 28 DAYS BEFORE ELECTION DAYS. PERIOD.
NO DARK AGE / STONE AGE OTHER STUFF — MENTAL / CRIMINAL / ETC. — USED BY RULING CLASS TO ELIMINATE OPPOSITION.
—
PR
APPV
TOTSOP
20 > 12