When the Supreme Court overturned a Colorado court ruling last month that had disqualified former President Donald Trump from the state ballot, the justices argued that it was necessary to avoid a “patchwork” of requirements for presidential candidates to meet. That would only invite “chaos,” they warned.
“An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times,” the justices wrote in an unsigned opinion in Trump v. Anderson. “The disruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the nation has voted.”
If that rationale was enough to justify writing Section 3 of the Fourteenth Amendment out of the Constitution, then one can only imagine how the justices will react to the latest shenanigans by red states. At least two states with Republican leaders—Alabama and Ohio—are now threatening to remove President Joe Biden from the November ballot.
Ohio Secretary of State Frank LaRose’s office sent a letter to the state Democratic Party to warn that Biden could be excluded from the ballot based on the timing of the Democratic National Convention, which is currently scheduled for August 19–22. That puts it a few weeks later than the state’s August 7 deadline to certify a major-party presidential candidate. (The Republican National Convention is scheduled for late July.)
“I am left to conclude that the Democratic National Committee must either move up its nominating convention or the Ohio General Assembly must act by May 9, 2024 (90 days prior to a new law’s effective date) to create an exception to this statutory requirement,” LaRose’s office told the state party in the letter.
A few days later, Alabama Secretary of State Wes Moore sent a similar letter to Democrats warning that Biden could be ineligible for that state’s ballot based on a similar deadline. “If this office has not received a valid certificate of nomination from the Democratic Party following its convention by the statutory deadline, I will be unable to certify the names of the Democratic Party’s candidates for president and vice president for ballot preparation for the 2024 general election,” he warned.
It would be one thing if Biden and the Democrats were missing a deadline through ineptitude or error. That does not appear to be the case here. A more likely explanation is that some Republican-led states are following through on the implicit threat they made in Anderson—to remove some presidential candidates for bogus reasons for partisan gain—even though the justices caved to avoid precisely that.
Leaving Biden off the ballot would be a significant break from the past. No major-party presidential candidate has been left off a state ballot for deadline reasons in recent memory. The Democratic and Republican conventions have historically occurred in late August, though they have also sometimes happened as early as late July and as late as early September.
Democratic and Republican conventions are largely pre-scripted campaign events nowadays. In the nineteenth and early twentieth centuries, political parties sometimes gathered with no clear sense of who their eventual nominee would be, with plenty of horse-trading, negotiations, and campaigning to occur on site. The advent of party primary elections, however, meant that parties found out who the nominee would be well in advance.
Despite this, they still hold an important legal function. A presidential candidate does not formally and legally become that party’s nominee for president until the convention votes upon it. While this is largely perfunctory and ceremonial in modern campaigns, it is still an important procedural threshold for candidates to meet.
There are some indications that states have also ignored or waived the certification deadlines in previous election cycles. In 2012, for example, Ohio law required the state to certify its presidential candidates by August 8, even though the RNC didn’t begin until August 27 and the DNC didn’t begin until September 4 that year. Barack Obama and Mitt Romney both appeared on the Ohio general election ballot that year despite this.
Alabama’s administrative deadlines also appear to be more flexible than state officials suggested. Information on historical deadlines is generally scarce, but according to the state’s administrative calendar for elections for the 2020 election cycle, the two major parties were required to certify their presidential candidates by August 20 of that year. Democrats certified the Biden-Harris ticket on the day of the deadline, which was also the last day of the Democratic National Convention that year.
But that deadline posed an obstacle to Republicans since their convention did not start until August 24. So how did Trump get on the Alabama ballot that year? State records show that they simply notified the state in advance that he would be the probable nominee. A lawyer for the Republican National Committee sent a formal letter to the Alabama secretary of state’s office on August 20 to declare that it “anticipate[d]” that Trump and Pence would be the party’s presidential ticket nominees.
That appeared to suffice for the Alabama secretary of state’s purposes. Indeed, state records show that the Alabama Republican Party did not formally certify the Trump-Pence ticket until August 27, the last day of the Republican National Convention that year. And the RNC itself did not certify that Trump and Pence were the party’s nominees until August 30, a full 10 days after the state deadline. Trump ultimately made the ballot in Alabama and won the state’s electoral votes that year.
Allen, the current secretary of state, did not alert Biden of that option in his April 8 letter this cycle. He instead indicated that the deadlines were strict and immutable. “If those certificates are not in my office on time, there will be no certification and no appearance on the Alabama general election ballot in accordance with sections 17-13-22 and 17-14-31(a) of the Code of Alabama,” Allen warned. “With this letter, we are providing ample notification to the leadership of the Democratic Party at the state and national level that the burden of providing those certifications by the statutorily set deadline is a requirement that they must meet.”
Rescheduling the Democratic convention would be no easy feat. The major networks traditionally reserve some airtime for each party each night, making it an invaluable chance to appeal to voters. If Democrats moved the convention earlier in the month to meet Alabama’s August 15 deadline, they would have to compete with the Summer Olympics in Paris, which take place between July 26 and August 11 this year. The Republican convention is already scheduled for the week before that. The logistical and financial hurdles would also likely be immense even if it were feasible.
What makes Alabama and Ohio’s actions so striking is that the two states warned the Supreme Court that something like this might happen. In a friend of the court brief in Anderson, a coalition of Republican-led states hinted in unsubtle terms that they would retaliate with their own disqualifications if Trump were removed from the ballot anywhere. The attorneys general of Alabama and Ohio both signed onto the brief.
“If the Court endorses what happened in Colorado, then the chaos can only be expected to worsen,” the states told the court. “No doubt a political tit-for-tat will ensue, in which competing parties will find new avenues to disqualify their opponents. And elections could then come down to small variations among state elections laws and the political composition of state administrations. In short, indulging challenges of this sort and in this posture will ‘sacrifice the political stability of the system’ of the nation ‘with profound consequences for the entire citizenry.’”
The Supreme Court effectively bowed to this threat in its Anderson decision. Instead of reaffirming its own ability to determine lawful eligibility challenges from bogus ones, it bowed to the possibility that some states might go rogue for partisan gain. (It’s worth noting that this case also didn’t even involve mere logistical deadlines, but a clear constitutional command.) “The ‘patchwork’ that would likely result from state enforcement would ‘sever the direct link that the Framers found so critical between the national government and the people of the United States’ as a whole,” the justices wrote, quoting from a 1995 election law case.
Now Republican state officials appear to be having their cake and eating it too. Both states have apparently treated these deadlines as flexible in the past, a point cited by Democratic officials in some news reports on the issue. But it is hard to take the suddenly rigid enforcement of them at face value. And if the Supreme Court meant what it said in March about the dangerousness of a “patchwork” presidential election, then it will not—or at least should not—stomach this either if it ultimately weighs in.
