Wednesday, August 30, 2023

The 14th amendment and presidential primary ballot eligibility

Invisible Primary: Visible -- Thoughts on the invisible primary and links to the goings on of the moment as 2024 approaches...

First, over at FHQ Plus...
  • Add Missouri Democrats to the 2024 presidential primary calendar. Democrats in the Show-Me state finally released a draft delegate selection plan with proposed details of their process for 2024. That and delegate allocation will look different for Massachusetts and Montana Republicans than it has in past cycles. All the details at FHQ Plus.
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In Invisible Primary: Visible today...
Discussion about former President Donald Trump and his eligibility under the 14th amendment given the events of January 6, 2021, have been en vogue during August, set off first by a pair of conservative scholars associated with the Federalist Society and then reignited in recent days by Michael Luttig and Lawrence Tribe, writing at The Atlantic. FHQ has kept most of it at arm's length, choosing to focus instead on the evolving state-level delegate allocation rules on the Republican side. Mainly that is a function of the whole thing being compartmentalized in my head as a general election question.  

But then came questions about and lawsuits pertaining to Trump's eligibility for presidential primary ballots. There have been questions raised in first-in-the-nation New Hampshire and in Arizona and lawsuits filed or threatened in the Granite state and Michigan as well. But in FHQ's eye, those actions face a much steeper climb to success in the courts. And that is not to suggest that the case for Trump's eligibility on the general election ballots across the country are a slam dunk. [David Frum is probably right.] But those general election access challenges would be a cleaner proposition than the comparative legal thicket challengers would wade into with respect to primary ballot eligibility. That is probably why Baude and Paulsen, the conservative scholars who started all of this, did not dwell on the primaries but in a handful of passing references in 120 plus pages. 

The primary side of the equation is messy (or messier) for a few reasons. First of all, a primary is an election for a nomination and not an office. Does the 14th amendment address eligibility for nominations? Yes, a primary is a step toward an office, but it does not solely hand someone said office if a candidate wins it. Furthermore, presidential primaries are different than primaries for other offices. The winner of a presidential primary will not necessarily appear on the general election ballot. Ted Cruz, for example, won the 2016 Texas Republican presidential primary but was not on the ballot on the presidential line in the Lone Star state in the November general election. When Cruz won his Senate primary in 2018, he was on the general election ballot.

And then there is the whole issue of primaries -- well, nominations -- being the business of political parties, entities that have certain free association rights under the first amendment. Sure, that veers into questions of political parties opting into state-run (and subsidized) primary elections, a complication that arises in other contexts. The linkage to a state sponsored election may serve to weaken the argument against primary eligibility. 

All of this merely scratches the surface. There are probably other complexities in addition to those above, but each and every one of those would be added to list above and on top of the ones that will be raised in any challenge to Trump's eligibility to appear on the general election ballot should it come to that. The primary questions are just messier, but that does not mean that someone more litigious than I will not wander down that path. In fact, they already have. But they have quite the legal minefield to get through.

A new survey of the Republican presidential nomination race in Utah from Deseret News offers an interesting hypothetical in terms of delegate allocation in the Beehive state next year. First, the results from the poll:

So Trump is ahead but by a narrower margin than in some other states. How would the delegate allocation look in this situation? 

Before FHQ answers that, I should note that the Utah Republican Party adopted rules in June 2023 that carried over the allocation rules from 2020. Yes, the party will use a caucus system rather than the state-run primary option in 2024, but the basic allocation scheme is the same. No one has a majority in this poll, and thus no candidate trips the winner-take-all trigger. Two candidates -- Donald Trump and Ron DeSantis -- hit the 15 percent qualifying threshold called for in the Utah rules and would be entitled to a proportional share of the 40 delegates at stake in Utah. 

But there is a catch. Under Utah Republican Party rules, if three or more candidates clear the 15 percent hurdle statewide, then they are entitled a proportional share of the delegates based on the qualified vote, the combined vote of just those over 15 percent. If, however, two or fewer candidates win 15 percent statewide in the caucuses on Super Tuesday, then the threshold is dropped altogether. All of the candidates who could mathematically round up to a full delegate would claim a share. That would take delegates away from Trump and DeSantis under the results above (assuming there was a universal 15 percent qualifying threshold that applied in all cases except when one candidate wins a majority). 

Yes, there are still 13 percent who are undecided in this survey and Super Tuesday is a long way off. But this is one of those rules quirks that bears watching. [Yeah, there are a lot of them in the Republican process.]

From around the invisible primary...

See more on our political/electoral consulting venture at FHQ Strategies. 

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