Scrutinizing Federal Electoral Qualifications
Derek T. Muller
Pepperdine University - School of Law
August 28, 2014
Indiana Law Journal, Vol. 90, Forthcoming
Pepperdine University Legal Studies Research Paper No. 2014/16
Candidates for federal office must meet several constitutional qualifications. Sometimes, whether a candidate meets those qualifications is a matter of dispute. Courts and litigants often assume that a state has the power to include or exclude candidates from the ballot on the basis of the state’s own scrutiny of candidates’ qualifications. Courts and litigants also often assume that the matter is not left to the states but to Congress or another political actor. But those contradictory assumptions have never been examined, until now.
This Article compiles the mandates of the Constitution, the precedents of Congress, the practices of states administering the ballot, and judicial precedents. It concludes that states have no role in evaluating the qualifications of congressional candidates — the matter is reserved to the people and to Congress. It then concludes that while states have the power to scrutinize qualifications for presidential candidates, they are not obligated to do so under the Constitution. If state legislatures choose to exercise that power, it comes at the risk of ceding reviewing power to election officials, partisan litigants, and the judiciary. The Article then offers a framework for future litigation that protects the guarantees of the Constitution, the rights of the voters, and the authorities of the sovereigns.
Number of Pages in PDF File: 61
Keywords: federalism, elections, election law, qualifications, ballot access, electoral college, voting rights, voters, Congress, Electoral Count Act, term limits
JEL Classification: K00, K1, K10Accepted Paper Series
Date posted: April 1, 2014 ; Last revised: August 29, 2014
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