In the wake of the 2008 U. S. Presidential Election some bemoaned the lack of eligibility checking for presidential candidates. Some asserted that there is a “big gaping hole” in the process that led to confusion, turmoil, and, in their view, an ineligible President taking office. Some said that the process is broken and needs to be fixed.
Several state legislatures considered legislation that would establish procedures to vet presidential candidates at the state level, including requirements that candidates present documents and give oaths. None became law. Challenges in at least 18 states were filed alleging that various presidential candidates are ineligible to appear on the ballot, or that state officials have failed in their duty to perform a rigorous eligibility screening for all presidential candidates. Over one hundred failed lawsuits, petitions and challenges later, things are essentially where they began.
I believe that the system is not broken; rather, the confusion and turmoil is solely due to the failure of those suffering the confusion and experiencing the turmoil to read and understand the U. S. Constitution. Our Constitution sets up a two-stage process to ensure that only an eligible individual assumes the office of President of the United States.
The first responsibility in selecting an eligible President lies with the citizens of the United States. Citizens are guaranteed by the Constitution the right to speak and to assemble peacefully. At no time in our history has it been easier for an individual to reach large numbers of other voters; the Internet indeed makes speech free. The Constitution also grants freedom of the Press, who have the resources to research, to investigate, interview, and get priority access to Freedom of Information Act material. Candidates can, and do investigate each other in microscopic detail and have ample resources to publish what they find. At any point, should it be suspected that a candidate for President is not eligible under the Constitution to serve in the Office, the opportunity is there to lay that concern before the voters in the election process.
It may be argued that private individuals, the Press, and opposition candidates are limited in what they can do in their investigation. Some records are closed by law, the public lacks subpoena power and they cannot compel testimony under oath. It may be argued that a misguided public could elect a popular candidate they know is ineligible. The Constitution provides an answer to this unlikely contingency. Under the Twelfth Amendment, at the time the votes of the Electoral College are counted, an objection by a single Senator and a single member of the House of Representatives will trigger an investigation by Congress into a candidate’s eligibility, and the Twentieth Amendment provides an exact procedure to handle the situation where the President-elect fails to qualify. (Take a moment to recall the many difficult political investigations done by Congress in the past.) Congress has the resources, the staff and the power to subpoena documents and compel testimony under oath.
Under our Constitution, the voters choose electors who by proxy select our President. No U. S. President elected by the voters has ever been found ineligible to serve under the Constitution. The system has worked for over 200 years. In the extremely unlikely situation that a future candidate should be elected President who was ineligible, who better than the Congress is qualified to settle the question?
While some may be dissatisfied with the outcome of the 2008 election, the process worked – the opposition just failed to make their argument. The case for ineligibility was out there for the voters to decide and they decided in favor of eligibility. Members of Congress were petitioned to investigate the 2008 Election on account of eligibility concerns before certifying the results. All the members of Congress voted to certify.
I think we have an elegant and effective vetting process for the office of President of the United States. It is much more streamlined than hundreds of lawsuits and a myriad of inconsistent state legislation.
This is not my idea, by the way. Judge William Alsup (pictured below) of the Northern District of California wrote in Robinson v. Bowen, a case in which the plaintiffs sought to exclude Senator John McCain from the 2008 ballot in California:
It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. § 15 for any challenge to any (presidential) candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress. The members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates.