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Failure to qualify

Over the past few months, I have read quite a bit of material from the birther side, including various lawsuits and challenges attempting to keep Barack Obama from the ballot in 2012. There are two recurring themes in this material: first an assertion that candidates for President and Vice President are obligated to prove their eligibility prior to running for office and that state officials are obligated to verify the eligibility of candidates before they are allowed to run for office.

Does the Constitution imply that a candidate or a state official has such an obligation? I am intrigued with the peculiar language of the 20th Amendment to the Constitution that says, in part (emphasis mine):

Section 3. If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

My reading of the Amendment suggests that Congress (who proposed the Amendment) anticipated that unqualified persons could be the President elect and Vice President elect, and from that I would infer that they understood that anyone, qualified or not, can run for and be elected President of the United States; but that should an unqualified person be elected, Congress would decide who would assume office.

The Congressional Research Service Report: “Presidential and Vice Presidential Succession: Overview and Current Legislation” (September 27, 2004) touches on the topic in Footnote 49:

The question of “failure to qualify” relates generally to the presidential election process. In theory, it could mean that neither of the persons winning a majority of electoral votes for President and Vice President meets the constitutional qualifications of the two offices, i.e., natural born citizenship, 35 years of age, and14 years of continual residence in the United States, but this contingency is extremely unlikely.

The U. S. Constitution does not assume that issues of eligibility will be conclusively dealt with before the election. For this reason, I think that all Constitutional arguments based on a pre-election obligation to prove or verify eligibility are non-starters.

One might extend this principle to say that state laws requiring proof or verification of candidates for President and Vice President are unconstitutional, but I am not convinced that this would be upheld by the courts.

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25 Responses to Failure to qualify

  1. avatar
    RetiredLawyer April 18, 2012 at 4:27 pm #

    I concur with your analysis that the qualifications of a presidential or vice-presidential candidate is determined by Congress, after the election. I disagree with your conclusion that the issue of state pre-election screening might be allowed. It has been clearly stated by the Supreme Court in many decisions that a state can not have any qualification for running for a federal office other than the ones set out in the Constitution.

    The latest round of these cases were those in which states enacted term limitations on elected officials and the Federal courts (and I believe some state courts) held that term limits are not in the Constitution and therefore are not allowed to be imposed on federal office holders.

  2. avatar
    Benji Franklin April 18, 2012 at 4:51 pm #

    Yeah, “Retired Lawyer”, in this case , “qualify” has to mean whatever Congress decides it means during their role in the Presidential election process. The insane basic premise of the Birther movement, is that EVERY POTUS -related word in the Constitution, the Congressional Record, and, if you’ll forgive the expression, the BALANCE of the Universe, has to mean what anyone who hates Obama declares it MUST mean, or have meant.

    The idea that Congress would empower Constitution interpreting “gate-keepers” to dictate precisely which candidates Congress would ultimately have to choose between, is not credible.

  3. avatar
    Dr. Conspiracy April 18, 2012 at 4:55 pm #

    I unequivocally stand by my conclusion, which might be otherwise stated: “I don’t know.” It was my hope, which is being realized, that commenters would take a position.

    However, let me pick a side for argument’s sake. I note that certain prominent Republican candidates were denied ballot positions in this election cycle because they had insufficient signatures on nominating petitions. Many states have laws requiring presidential candidates to be eligible, and in some cases require certifications of eligibility. Historically candidates have been excluded from state ballots because of ineligibility (e.g. Eldridge Cleaver for the age requirement in Hawaii, New York and California).

    RetiredLawyer: I disagree with your conclusion that the issue of state pre-election screening might be allowed.

  4. avatar
    Xyxox April 18, 2012 at 5:38 pm #

    My take is that no court in the country has jurisdiction to determine the eligibility of any president as that power is reserved to the Congress by Section three of the 20th Amendment.

    Furthermore, though Congress determined by fiat that Barack Obama was qualified to be president on January 8, 2009, a new Congress would be within its power to determine he is not qualified should he be re-elected. This is extremely unlikely, but it would still be within the confines of the 20th amendment and the power of the Congress to determine eligibility.

  5. avatar
    Sef April 18, 2012 at 5:43 pm #

    It is also interesting that the CRS report says “continual” residence in the U.S.. instead of “continuous”. Also not “contiguous” to the time of assuming office.

  6. avatar
    Loren April 18, 2012 at 6:10 pm #

    I tend to agree with Doc that a state law screening Presidential candidates to ensure that they meet Constitutional qualifications would be Constitutional. I find it odd, if not absurd, that the Constitution forbids any attempt to exclude Constitutionally ineligible candidates from the ballot.

    The hypothetical I prefer for this question, and which I hope to pose to some legal scholars at some point, involves not the requirements of Article II, but the requirement contained in the 22nd Amendment. The term limits Amendment.

    Imagine, for a moment, that when the Democratic Convention rolls around in August, that the party makes a surprising decision: they’re nominating Bill Clinton, not Obama.

    Ignore the practical considerations for the moment; just consider the legal issues. Bill is plainly ineligible to run for a third term; but what’s actually stopping him? If states have no authority to judge the eligibility of nominated candidates, then they can’t take off Bill’s name. If the federal electoral officials similarly have no authority to interfere, then they can’t have Bill removed.

    I’ve seen some people suggest that when it comes to Constitutional eligibility, the only legitimate screeners are the Electoral College. That strikes me as a recipe for disaster; what would happen if Clinton won a third term? What do the Democratic electors do at that point? They’re clearly not going to vote for the Republican. And given the length of the election cycle, voiding an election seems insane (especially since the Constitution defines when the sitting President’s term expires).

    What, then, is the actual enforcement mechanism for the 22nd Amendment? We obviously passed an Amendment to stop Presidents from serving more than two terms. And the enforcement mechanism can’t be to trust the wisdom of the voters; the reason the Amendment *exists* is because voters chose to elect the same guy four times. Are we to believe that the 22nd Amendment can be overridden if a candidate is simply popular enough to convince people to ignore it?

    I refuse to believe that there’s no legal means of stopping Clinton or Bush from running for a third term. And if there is, then surely there must be some means of ensuring that other ineligible candidates are kept off of Presidential ballots as well.

  7. avatar
    Sef April 18, 2012 at 6:27 pm #

    I contend that the Congress can do whatever they want to do. If, for instance, an obviously ineligible person were elected, Schwarzenegger, for instance, and Congress let him pass, he would be the President. No one could do anything about it, at least not until the next election. In this case, the policemen are the Congresscritters, and if they don’t police themselves no one else has a say. Similarly for what SCOTUS does (witness the recent decision about corporations being people, and of course, Dred Scott.)

  8. avatar
    Scientist April 18, 2012 at 6:37 pm #

    Sef: I contend that the Congress can do whatever they want to do. If, for instance, an obviously ineligible person were elected, Schwarzenegger, for instance, and Congress let him pass, he would be the President. No one could do anything about it, at least not until the next election. In this case, the policemen are the Congresscritters, and if they don’t police themselves no one else has a say. Similarly for what SCOTUS does (witness the recent decision about corporations being people, and of course, Dred Scott.)

    Congress has sat Representatives and Senators who were ineligible due to their age, and did so in the early days when many of the Founders were still around and in Congress or other positions of authority. The great Henry Clay served in the Senate for 3 months before he turned 30.

    Congress can define high crimes and misdemeanors as they choose-they can include oral sex with an intern if they wish, despite the clear intent of the founders that it meant serious abuse of office. And guess what? Had Clinton been convicted there would have been no appeal. Defining natural born citizen works the same way. if Congress would say that Schwarzenegger is qualified, then he would be President, and there would be no appeal. That doesn’t mean they should do so, but they can.

  9. avatar
    Xyxox April 18, 2012 at 6:43 pm #

    Sef:
    I contend that the Congress can do whatever they want to do. If, for instance, an obviously ineligible person were elected, Schwarzenegger, for instance, and Congress let him pass, he would be the President. No one could do anything about it, at least not until the next election. In this case, the policemen are the Congresscritters, and if they don’t police themselves no one else has a say. Similarly for what SCOTUS does (witness the recent decision about corporations being people, and of course, Dred Scott.)

    I agree. Constitutionally, Congress is the only body with a say in who is and is not eligible for the presidency. Should any court try to usurp that power, said court would be operating outside the bounds of the constitution.

  10. avatar
    Scientist April 18, 2012 at 6:45 pm #

    Loren: What, then, is the actual enforcement mechanism for the 22nd Amendment? We obviously passed an Amendment to stop Presidents from serving more than two terms. And the enforcement mechanism can’t be to trust the wisdom of the voters; the reason the Amendment *exists* is because voters chose to elect the same guy four times. Are we to believe that the 22nd Amendment can be overridden if a candidate is simply popular enough to convince people to ignore it?

    In the real world the Amendment has prohibitive practical and moral weight. When FDR ran for a 3rd term he was only defying a tradition, not the Constitution. But, Clinton or Bush would simply not be viable candidates because of the 22nd. Similarly, Schwarzenegger’s candidacy is a total non-starter unless the Constitution were amended. He knows it and so does everybody else. There is a grey area (McCain) and the Senate was right to give him the benefit of the doubt, but a naturalized citizen is not going to get elected, nor is a 3rd termer, unless the Constitution is amended.

    By the way, no law bars Charles Manson from the Presidency, nor is one necessary.

  11. avatar
    Jim April 18, 2012 at 6:55 pm #

    Sef:
    I contend that the Congress can do whatever they want to do. If, for instance, an obviously ineligible person were elected, Schwarzenegger, for instance, and Congress let him pass, he would be the President. No one could do anything about it, at least not until the next election. In this case, the policemen are the Congresscritters, and if they don’t police themselves no one else has a say. Similarly for what SCOTUS does (witness the recent decision about corporations being people, and of course, Dred Scott.)

    I think you’d have to have both parties go along with this scenario. Because, if the candidate were shown to be ineligible, as with Arnie, then the candidate opposing him could sue in courts to keep him off the ballot and show real harm if the ineligible candidate were allowed to stay on the ballot. In that case, personal and direct harm could be shown and the ineligible candidate would then be removed by the courts. Same in the Clinton scenario. Now, after the election is over, it would be out of the courts hands and up to the electoral college and/or congress to act. Now, for the primaries, you’re talking about a different animal. Then, it is up to the parties to decide who to let or not let onto the primary ballots. And, you’re not voting for someone for the office of President, just delegates to decide who should run for for the office. In Doc’s scenario, it wasn’t the states that kept candidates off the primary ballots, it was the parties who have certain requirements before they will allow you on their ballots. Which makes sense, since you don’t want so many people on the ballot that it just becomes confusing and then people don’t even know who they’re voting for. Which has happened here in Illinois when someone with a plain name won the primary over the party candidate just because of his name. It was so bad, the party wouldn’t even back him.

  12. avatar
    JPotter April 18, 2012 at 7:10 pm #

    Dr. Conspiracy: I note that certain prominent Republican candidates were denied ballot positions in this election cycle because they had insufficient signatures on nominating petitions.

    … and for failure to pay filing fees, and for missing deadlines. But these were instances of candidates failing to meet requirements to get on state ballots for primaries / caucuses, which are party-based functions managed by states. My impression is that the parties certify their candidates eligible for the general election, although requirements vary by state?

    Our election system is a big goofy mess, with many mechanisms and entities not addressed in the Constitution … parties, primaries, caucuses … the enshrinement of the two major parties in law … all astride the issue of split state/federal sovereignty. It’s changed a lot since 1790! No wonder it drives an “original intent” crowd like the birthers nuts!

    I suppose we could have the federal gov’t manage the Presidential election process top to bottom, would greatly simplify all the murky legality …. but that would never fly.

  13. avatar
    Stephen April 18, 2012 at 7:48 pm #

    Loren: Bill is plainly ineligible to run for a third term; but what’s actually stopping him?

    Not to parse too strongly, but Bill is NOT ineligible to run for a third term. He is ineligible to be elected to the office of President. He could run and if he won the majority of the electoral votes, he would be declared ineligible by Congress.

  14. avatar
    y_p_w April 18, 2012 at 8:02 pm #

    Stephen: Not to parse too strongly, but Bill is NOT ineligible to run for a third term. He is ineligible to be elected to the office of President. He could run and if he won the majority of the electoral votes, he would be declared ineligible by Congress.

    I’ve heard of proposals that perhaps a popular POTUS could theoretically run for VP (there is no restriction regarding VP other than age and natural born citizenship) be elected, and then the President resigns which elevates the VP to President. It’s a loophole that nobody has tried yet.

    Of course closing that loophole might take some creativity. I think it’s pretty clear that the intent would be that a former two-term VP should be able to run and could legally serve as POTUS for two terms. Perhaps make anyone who was elected POTUS twice ineligible to run for VP?

  15. avatar
    RetiredLawyer April 18, 2012 at 8:11 pm #

    Dr. C:

    As stated by someone else, the current elections are for the primaries and are essentially run by and for the parties, under whatever rules they want to use.

    Lets suppose the following: a rocketship is sent out into space, it hits a timewarp and comes back 30 years from now, however the rocketship pilot has not actually aged 30 years, so she is under age by biological time, but qualified by earth time. Is she eligible? Answer, yes, if Congress accepts her. [Actual plot of a SciFi short I read decades ago.]

    Dr. Conspiracy:
    I unequivocally stand by my conclusion, which might be otherwise stated: “I don’t know.” It was my hope, which is being realized, that commenters would take a position.

    However, let me pick a side for argument’s sake. I note that certain prominent Republican candidates were denied ballot positions in this election cycle because they had insufficient signatures on nominating petitions. Many states have laws requiring presidential candidates to be eligible, and in some cases require certifications of eligibility. Historically candidates have been excluded from state ballots because of ineligibility (e.g. Eldridge Cleaver for the age requirement in Hawaii, New York and California).

  16. avatar
    Rickey April 18, 2012 at 9:11 pm #

    Loren:

    I refuse to believe that there’s no legal means of stopping Clinton or Bush from running for a third term.And if there is, then surely there must be some means of ensuring that other ineligible candidates are kept off of Presidential ballots as well.

    My take is that if the courts have a role in this, it would have to be in Federal Court. It would turn the electoral process into a circus if a serious candidate were ruled to be ineligible by one or more states while at the same time deemed to be eligible in other states.

    Ultimately, however, we have to trust the voters. If Bill Clinton were to run for a third term, I could not in good conscience vote for him, and I am confident that he would never be nominated.

  17. avatar
    Tarrant April 18, 2012 at 9:13 pm #

    y_p_w: I’ve heard of proposals that perhaps a popular POTUS could theoretically run for VP (there is no restriction regarding VP other than age and natural born citizenship) be elected, and then the President resigns which elevates the VP to President.It’s a loophole that nobody has tried yet.

    Of course closing that loophole might take some creativity.I think it’s pretty clear that the intent would be that a former two-term VP should be able to run and could legally serve as POTUS for two terms.Perhaps make anyone who was elected POTUS twice ineligible to run for VP?

    The 12th Amendment says clearly that anyone ineligible to be elected President is also ineligible to be Vice President.

    However, there is a way to still use the loophole – the Constitution says that “No one that shall have served more than two years of a term in which someone else was elected President shall be elected more than once.” So a VP that becomes President and serves three years, can run for one more term, and then runs out their time.

    However, what if they’re never actually elected President? I think that loophole would hold (not that it would ever happen – we’re talking theoretical here). Someone could run as the VP, and the President can resign immediately. The VP then becomes President, and the next election, they again run as the Vice President, and each term, the President resigns on the first day and the VP moves in. There is nothing, Constitutionally, that prevents this scenario.

  18. avatar
    Paul Pieniezny April 18, 2012 at 9:34 pm #

    y_p_w: Of course closing that loophole might take some creativity. I think it’s pretty clear that the intent would be that a former two-term VP should be able to run and could legally serve as POTUS for two terms. Perhaps make anyone who was elected POTUS twice ineligible to run for VP?

    No creativity necessary. The Twelfth Amendment quite clearly states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.”

    No Bill for VP. There is a problem with the word “eligible” however. If Bill Clinton is made Secretary of State and something horrendous happens, killing amomgst others the President and the VP simultaneously and making him the first in the Presidential line of succession, does he take over as “acting” President? He was never elected to the job of SoS …

    In fact, that issue has been open since John Tyler refused to be called “acting” President, making it possible for someone like SoS Bill Clinton to claim the title. The 25th did not really settle this. However, since traditionally, those who would be in the Presidential line of succession have been excluded if they were NOT NBC, it seems more natural to assume that Bill as SoS would also be excluded, but the question remains whether “eligible” has the broader meaning “qualified” or the narrower meaning “fit to be elected”.

  19. avatar
    Paul Pieniezny April 18, 2012 at 9:53 pm #

    Tarrant: However, what if they’re never actually elected President? I think that loophole would hold (not that it would ever happen – we’re talking theoretical here). Someone could run as the VP, and the President can resign immediately. The VP then becomes President, and the next election, they again run as the Vice President, and each term, the President resigns on the first day and the VP moves in. There is nothing, Constitutionally, that prevents this scenario.

    For completeness’ sake only: correct, according to me. But do not forget he or she will need a different ghost leader the third time, and the fifth time, and the seventh time … ad infinitum,

  20. avatar
    Linda April 18, 2012 at 9:57 pm #

    Loren: I refuse to believe that there’s no legal means of stopping Clinton or Bush from running for a third term. And if there is, then surely there must be some means of ensuring that other ineligible candidates are kept off of Presidential ballots as well.

    There is no constitutional requirement to be a candidate, only to hold certain offices. This is why the parties vet their own as much as possible. They do not want to win an election only to have their candidate booted for ineligibility, basically sealing future losses for lack of confidence.

  21. avatar
    Origuy April 18, 2012 at 10:25 pm #

    There have been presidential candidates who were known to be ineligible. From the Wikipedia entry for the Socialist Workers party:

    In the U.S. presidential election of 2004 the Socialist Workers Party ran Róger Calero for President and Arrin Hawkins for Vice-President. It should be noted that both candidates were constitutionally unqualified for the positions (under Article II, section 1) because Calero is not an American citizen and Hawkins was 29 years old, with the minimum age being 35. James Harris and Margaret Trowe, the SWP’s ticket from 2000, stood in on the ballot in some states where Calero and Hawkins could not be listed.

  22. avatar
    Loren April 18, 2012 at 10:26 pm #

    JPotter: … and for failure to pay filing fees, and for missing deadlines. But these were instances of candidates failing to meet requirements to get on state ballots for primaries / caucuses, which are party-based functions managed by states.

    It’s in the general election too. Here in Georgia, the requirements for getting onto the November Presidential ballot are insanely difficult. The only parties to have their candidates regularly appear are the Republicans, Democrats, and Libertarians. And the only person outside of those three parties to be listed on the Presidential ballot in Georgia in the last 20 years was Ross Perot.

    To wit, Ralph Nader has never appeared on the Georgia ballot. Not even in 2000.

    So yeah, states exclude candidates (even candidates with name-recognition from national parties) from Presidential general election ballots. Just because they’re deemed insufficiently popular under state law.

  23. avatar
    G April 18, 2012 at 10:45 pm #

    Agreed. That is how I interpret such a scenario playing out as well.

    Stephen: Not to parse too strongly, but Bill is NOT ineligible to run for a third term. He is ineligible to be elected to the office of President. He could run and if he won the majority of the electoral votes, he would be declared ineligible by Congress.

  24. avatar
    J. Potter April 19, 2012 at 1:22 am #

    Loren: The only parties to have their candidates regularly appear are the Republicans, Democrats, and Libertarians.

    Oh, Loren, I’d love to see a Libertarian on a ballot. Not to vote for them, but just as a sign that democracy lives. No ‘other’ party candidates here since 1996. I recall the 2000 election, expecting to see various names, and being very confused by the ballot.

    I wouldn’t say states exclude candidates …. the major parties use the mechanisms of the states to exclude candidates. A fine, but important distinction. Probably not a new trend, but one that has definitely ramped up. I wouldn’t presume to say the Blues are innocent, as politics is dirty, but the Reds have been all about “protecting the ballot box” lately …!

    ___________________

    The part of the amendment I find interesting is: “if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified” … so if the President-elect is revealed to be 34 or a 13-yr resident, the the VP is President … and there is no VP? Then the Pres-elect would be sworn in when the time has passed?

    What if the President is found to be a fraud (a birther dream come true!) who will never qualify? … just bump him out and follow the line of succession? Promotions for everyone!

    Life should be so interesting.

    Thanks to partisanship, any such intrigue would get really nasty, really fast.

    _______________

    Hey G, welcome back. 🙂

  25. avatar
    G April 19, 2012 at 2:18 am #

    Thanks for noticing! 🙂

    I’ll be even busier than usual for awhile, but I’ll still try to stop by and catch up and even post when I can.

    J. Potter: Hey G, welcome back.