This article by Matt Welch was published today.
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On January 26, Congressman Dean Phillips asked the Wisconsin Supreme Court to put him on the Democratic presidential primary ballot. So far, only Joe Biden is on the ballot. Phillips v Wisconsin Election Commission. Wisconsin is not a state in which the parties decide for themselves whom to list on their presidential primary ballot. Instead a state commission decides. Here is Phillips’ brief.
In this interesting post on electionlawblog.org, Ned Foley proposes a system whereby the Final Five candidates are eliminated one at a time, in a system that he says would not require a constitutional amendment.
On February 1, the Oregon Supreme Court ruled unanimously that the new state constitutional provision relating to legislators who have too many absences applies to the 2024 election. The Republican incumbents who were told they can’t run for re-election this year had sued the Secretary of State, arguing that the measure, if read carefully, doesn’t affect the 2024 election. But the Court ruled it does affect the 2024 election. Knopp v Griffin-Valade, S070456.
Here is the decision. Thanks to Thomas Jones for the link.
In all states except Pennsylvania, a presidential nominee of a qualified party need not file any documents himself or herself to get on the November ballot. Instead, presidential nominees of qualified parties get on the general election ballot automatically. The state party officers send the names of that party’s presidential elector candidates to the state elections office, and the party’s certification also notifies the state of whom the electors are pledged to.
Challenges to former President Donald Trump this year, and last year, have been challenges to his appearance on presidential primary ballots. Generally, when a candidate must file some document, a state has a procedure for a voter to challenge that document based on the candidate’s eligibility. But there are no parallel laws by which a voter can challenge the certification document of a qualified party that names the elector candidates and reveals whom they are pledged to. Therefore, just because there is a state procedure to challenge someone’s appearance on a presidential primary ballot, it doesn’t follow that there is a procedure to challenge that same person’s general election ballot listing.
If the U.S. Supreme Court decides that the Colorado Supreme Court was correct to keep Trump off the March presidential primary ballot, based on Colorado state law on how primary candidates can be challenged, it doesn’t even follow that Trump (assuming he is the Republican nominee) can be kept off the November ballot in Colorado.
Of course, state legislatures could quickly pass bills that explicitly say a qualified party cannot submit any presidential elector candidates who say they are pledged to an ineligible presidential candidate. There is such a bill pending in the California legislature. Here is the text of SB 929, sponsored by State Senator David Min (D-Irvine).
There is also a Hawaii bill, SB 2392, by Senator Karl Rhoads (D-Honolulu). It has a hearing in the Senate Judiciary Committee on February 6.