We are heading into uncharted waters.  A major political party has become a cult in thrall to a person who may not be eligible to run for president (or at least barred from the ballot in several states) who insists that he should be the nominee in 2024.  Add to that a martyr complex by the true believers who have taken over many state parties, and we are heading into potential chaos for the Fall of 2024.

Of course, one of the complexities is that the national election for president is when the electoral college meets and votes and sends those votes to Congress to be counted.  Up until that Wednesday in December, we have fifty-one elections for presidential electors and more elections for delegates to the nominating convention.  Each of the jurisdictions (states and territories) involved in these elections have different rules and procedures.

Having said that, there are several general things that are consistent from state to state.  First, for the general elections, the parties certify the name of their presidential and vice-presidential candidate in late August or early September.   Second, there is a state election authority which receives and processes the candidate paperwork for state and federal candidates.  For the most part, these officials rarely refuse candidate filings, but they are tasked with determining whether the filing to be on the ballot is complete and shows that the candidate is eligible to run under state law.  Third, decisions on whether a candidate qualifies to be on the ballot is subject to some form of judicial review.  But, assuming that the election authority finds that a candidate is eligible to run, the different states have different rules on who can challenge that determination.  In all, or almost every state, the opposing candidates have the right to bring such a case, but the rules as to who else has that right differs from state to state.  Fourth, if, for some reason, a party’s nominee has to be replaced on the ballot, it generally falls on the state party to name a replacement.  Fifth, for the presidential election, there is actually a ticket composed of the candidates for president, the vice-president, and the presidential electors.  It is the last two or three where the potential for chaos emerges.

So the starting point is the various state rules on ballot access.  Here is where there is the biggest difference.  Some states have no restrictions on convicted felons running from office.  Others only bar running if the candidate is currently incarcerated.  But some states, bar candidates from running upon the finding of guilt and that disqualification is permanent.  The big issue is whether these restrictions apply to federal candidates.  To the best of my knowledge, the U.S. Supreme Court has never addressed this issue.  However, the U.S. Supreme Court has found that state “term limit” restrictions on candidates running for Congress are invalid as an additional “qualification” beyond those set forth in the U.S. Constitution which does not bar convicted felons from serving in office.

But there is one national ballot access restriction — Section 3 of the Fourteenth Amendment bars any person who has taken an oath to support the Constitution and then engages in an insurrection from holding any public office.  There are two questions concerning this provision — a legal one and a mixed issue of fact and law.  The legal issue is that this provision allows Congress to restore the right to hold office by a two-thirds vote of both houses.  The legal issue is the Amnesty Act of 1872 which waived Section 3.  The question is whether the broad language of this section was merely retroactive (restoring the eligibility of those who prior to 1872 had engaged in such an insurrection) or was also proactive (forever waiving Section 3 from applying to anybody including those who would, in the future, engage in such insurrection).    Assuming that the courts take the usual approach to statutory and constitutional interpretation and holds that the Amnesty Act does not apply to future insurrections, the question would then be whether Trump’s conduct in January 2021 qualifies as an insurrection.

But turning from the legal basis on which former President Trump could (and should) be disqualified from being on the ballot, the question turns to how this would work in practice.  And, initially, we are looking at the decision of fifty-one jurisdictions.  In each state, and D.C., some election official will have to make a preliminary ruling on whether Donald Trump is eligible to run.  For those states with state primaries, this decision would first be made in connection with the state primary and then, again, for the general election.  If the ruling was that Donald Trump could not be on the ballot, the Trump campaign would almost certainly go to court.  But if the ruling goes the other way, you could see a court challenge for the primary, but that challenge might not come until the general election.

Whether for the primary or the general election, the timetable for a court case on this issue is tight.  There is only a short period between the deadline for filing and the deadline for printing ballots.  As such, most judges will put such a case on the fast track (assuming that they take the issue seriously).  In most states, however, this challenge will be initially heard by a trial court.  Assuming that the trial court finds that Donald Trump is not eligible to run for office in that state, the next issue is whether the trial court “stays” (keeps its decision from taking effect immediately) its ruling for a period of time to permit appeals or has it take effect immediately.  (A side issue is whether these cases will be heard in state court or federal court.  Normally, candidate eligibility cases are heard in state court.  But, in the case of Donald Trump, his eligibility involves questions of federal law which could cause the case to start or be “removed” to federal court.)  Again given the deadlines for a final decision, one would expect the appellate courts to expedite any appeal with a very short briefing schedule.  Ultimately, any case would could get to the U.S. Supreme Court, and it is very unclear what the U.S. Supreme Court might do.

Assuming that the U.S. Supreme Court does not get involved up front to create a “national” finding as to whether Donald Trump is eligible to be on the ballot, we could get into a very weird election in which Donald Trump remains on the ballot in some states but is removed from the ballot in other states.  And, in those states, you will have the real potential for chaos.

In theory, the state Republican parties should name a replacement candidate for President and keep the national nominee for vice-president in that slot.  Of course, if they just bump up the V.P. candidate to the President slot, they would need to name a replacement V.P.  Of course, most states have deadlines for naming a replacement nominee.  If the party fails to name a replacement nominee, would the party lose its ballot slot or would the ballot only list the nominee for V.P?

Regardless of the decision made by the state (on whether the Republican Party needs a replacement nominee to keep the ballot line) and the state party (on whether to name a replacement nominee or keep the line blank), the Republican Party could face a problem with its voters on election day.  My assumption is that at least some of the Republican voters faced with Donald Trump not being on the ballot will cast a write-in vote for Donald Trump (which would not count) rather than voting a straight ticket or would opt not to show up.  Both decisions would cost the Republican Party votes that they might need to win down ballot races in swing districts, and might even cause even some very red states to go to the Democrats in the presidential election.

I would assume that, if we were dealing with a state-by-state decision rather than a national decision, that one strategy of the Republican Party would be to try to explain to the voters how the presidential election really works — namely that voters are really voting for the electors not the presidential candidate.  Thus, even if Donald Trump’s name is not on the ballot, the electors will still be voting for Donald Trump.  But even if such a strategy might work with the voters (and I assume that there will still be some voters who would write-in such a vote), it is not a viable strategy in all states.  In some states, the state has a strict faithless elector law.  In such states, the electors must vote for the candidate to whom they were pledged on the ballot or they are automatically removed and replaced by an alternate.  In such a circumstance, could you see the slate of electors send in a contingent vote — indicating that the electors wished, for example, to cast five votes for Donald Trump but were compelled by state law to cast five votes for Tim Scott.

And all of this, of course, leads to January 6, 2025.  If you thought January 6, 2021, was bad, January 6, 2025, could be even worse.  Not only could state election officials or judges decide that Donald Trump should be kept off the ballot, but Congress could decide that Donald Trump is ineligible to hold office.  In theory, any votes cast for Donald Trump should count as valid votes.  If Donald Trump won, the Twentieth Amendment provides for the Vice-President to serve as President until the President-elect becomes eligible.  As the Fourteenth Amendment provides that a two-thirds vote is required to restore eligibility, Donald Trump may never become eligible.  But, assuming the Congress counted all votes, declared Donald Trump the winner and also determined that Donald Trump was ineligible, there would almost certainly be a court case on whether Donald Trump was ineligible.   And assuming, that due to the previously mentioned state decisions, some Republican electors had to vote for somebody other than Donald Trump (maybe even a significant number of electors) or Democrats won a certain number of states due to write-in votes for Donald Trump not being counted as votes for the Republican electors, you would get back into the question of what electoral votes were valid votes.   And, if after all the electoral votes were counted, neither Joe Biden nor Donald Trump had 270 votes due to the votes cast for Tim Scott, Mitt Romney, Mike DeWine, etc., we would have the first contingent election since 1824.  And the question would become how the chaos of an election in which Trump was off the ballot in some states with closely-divided house delegation altered the number of “red states” in the House (which would vote by state).  And would some courageous red states cast their votes for whichever Trump alternative was among the choices (since the House would be choosing between the top three candidates)?

If the RNC has half a brain, they will probably try to think their way through the chaos scenarios.  I would expect that the RNC would suggest different options to different states.  In states in which electors are bound to vote for the presidential candidate listed on the ballot, I would expect that the preferred course of action would be to proceed with the “President” slot on the ballot left blank and the voters getting a ballot that would only list the Vice-Presidential candidate.  The Republican Party would then do their best to tell the voters that the dastardly liberals were censoring their ballots but that voting for the Republican ticket was still the proper way to vote for Donald Trump.  There would probably also be some post-election litigation in such states to argue for counting write-in votes for Donald Trump as votes for the Republican ticket.  In states which did not bind electors to vote for the presidential nominee, you would probably have a popular state politician named (again with the explanation to the voters that Donald Trump was still the real candidate and that the state official was simply standing in for Trump due to the dastardly liberals trying to block Trump.)

Obviously, it would be best for all if there was actually a decision on this issue before the election by the U.S. Supreme Court.  Such a decision might not be the result that we want, but having a definitive answer would avoid turning January 6, 2025, into a full-blown circus.