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Insurrection and Ripeness
Andrew Hyman

When a candidate for public office does not have the necessary constitutional qualifications, it may be appropriate to remove him from the ballot before the election, instead of trying to remove him from office after the election.  That way, a new election is not needed, nor would the office have to be filled by temporary appointment.

But the situation is different with a presidential election, because if the president (or president-elect) is disqualified, then the vice-president (or vice-president-elect) becomes president, without any need for an election do-over.  This raises the question of whether claims of disqualification always ripen before a general presidential election.  Indeed, presidential disqualification claims are somewhat pointless if the person in question is not going to be elected, so the wise course may be to conduct the presidential election first and only then go through the sometimes difficult process of figuring out if someone is an insurrectionist.

Section three of the Fourteenth Amendment says, “No person shall…hold any office” if he engaged in (1) insurrection or (2) rebellion or (3) gave aid or comfort to the nation’s enemies.  It does not forbid anyone from “seeking“ the presidency, only “holding” the presidency.  This highlights the ripeness issue again.

In present circumstances, we have four criminal trials coming up in a presidential election year for the leading Republican candidate. This timing may be coincidental and accidental, but maybe not.  A conviction in any one of those cases would likely turbocharge efforts to label ex-President Trump as an insurrectionist and get him removed from ballots.  Regardless of whether he is guilty of that crime or not, I doubt such an effort to invoke section three would be ripe before the general election.

Removing people after they are elected or appointed has often been the way that the U.S. has dealt with alleged insurrectionists.  In 1870, a federal statute was enacted requiring removal from office using a writ of “quo warranto,” and that statute was on the books until 1948.  As that statute said, the writ was only used where “such person shall hold office….” instead of where such person was merely seeking office. Similarly, when insurrectionists have run for Congress or state legislatures, those elective bodies have often disqualified them after they were elected, not before. That history highlights the ripeness issue yet again.  Even if section three can apply to office-seekers, in addition to office-holders, the presidency is different for the reason I’ve explained: the vice-president (or vice-president elect) is able to step up, without the need for any new election.

This ripeness issue is not about whether ex-President Trump is guilty of insurrection or any other crime.  It’s about whether the section three issue would best be addressed after he has been elected to a second term, which he may not be.  As a matter of politics, it might be better for his opponents if he is kicked off the ballot a little bit earlier than the general election, thus throwing his party into turmoil at the worst possible time.  But legally the matter would probably not be ripe until after the general election.  One way to proceed would be a civil suit using the writ of quo warranto, in any state court and at any time after the general election, though the matter would probably be appealed ultimately to the U.S. Supreme Court.  Another way would be impeachment after the inauguration followed by another Senate trial.  Or perhaps the answer given by voters in the election would end the matter.