It is widely accepted that President Trump's recent indictment places the country in "unchartered waters." A former president and front-runner for reelection has never been indicted. Of course, Mr. Trump denies all wrongdoing, but what happens if he is convicted and goes on to win the presidency -- from a prison cell? The country has never faced such an imponderable.
Scholars and writers have generally taken the view that nothing prevents a felon from being elected President. Kimberly Wehle writing in The Atlantic (the title says it all: "Yes, He Could Still be President from Prison"):
The original Constitution contains only three criteria for president: citizenship (natural-born U.S. citizen, meaning a citizen at the time of birth), age (at least 35 years old), and residency (at least 14 years in the U.S., not necessarily consecutively and not necessarily immediately preceding ascension to office). That’s it.... If Trump were to then secure his party’s nomination via the processes the Republican Party has designed for itself, no federal law would intervene
Maggie Astor, while acknowledging "the view was not universal among legal experts," recently wrote in the NYT:
States could, in theory, try to keep Mr. Trump off the ballot by passing legislation requiring a clean criminal record, but this would be on legally shaky ground.
“We let states set the time, place and manner” of elections, said Jessica Levinson, a professor at Loyola Law School who specializes in election law, “but I think the best reading of our Constitution is you don’t let the state add new substantive requirements.”
For further insights, I recommend Seth Barrett Tillman and Josh Blackman.
The United States Supreme Court has made clear that in Congressional elections, the Constitution establishes the exclusive criteria for who may hold office. A federal or state law cannot disqualify an otherwise suitable candidate. Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton are the leading cases for this principle. The Supreme Court cited extensive evidence from the Constitutional Convention and ratification debates. For example, James Madison:
"The qualifications of electors and elected were fundamental articles in a Republican Govt., and ought to be fixed by the Constitution. If the Legislature could regulate those of either, it can by degrees subvert the Constitution."
And Alexander Hamilton:
"[T]he true principle of a republic is that the people should choose whom they please to govern them. Representation is imperfect in proportion as the current of popular favor is checked. This great source of free government, popular election, should be perfectly pure, and the most unbounded liberty allowed."
Powell recounted the history of John Wilkes, a member of Parliament who was convicted and imprisoned for having written a political attack on the government. After Wilkes' release from prison, he was repeatedly reelected by his district to Parliament, but refused his seat by a majority vote in Parliament. Wilkes' convictions were eventually expunged, Parliament relented, and he was granted his seat. The moral of the story -- well known in America -- was the essential right of voters to be represented by people of their choice.
In Thornton, Justice Thomas wrote a dissenting opinion joined by the Court's then-Conservative wing. In his view, states have the right to impose additional requirements on congressional candidates beyond those in the Constitution. The central issue for Justice Thomas was states rights, enshrined in the Tenth Amendment. States, he argued, have every right to establish who they will send to Congress. The Constitution establishes minimum criteria for who may join Congress, but not the only criteria, and states may enact their own requirements for office holders. However, even Justice Thomas seemed to allow that, "the people of a single State may not prescribe qualifications for the President of the United States; the selection of the President... is not up to the people of any single State." More recently, the Supreme Court hinted in a footnote that in a Presidential election the Constitution's criteria for candidates may be exclusive such that they could not be altered by a state law.
Theoretically, there is room to argue that current precedent would not cover disqualification of a candidate from the Presidency following a criminal conviction. The right of the voters to be represented by the President of their choosing is not essential in the Constitutional scheme. In practice it has not turned out this way, but at least in design, voters choose electors in the Electoral College, which implies a divide and potential discrepancy between the voters' choices and the outcome of a Presidential election. It does not seem antithetical to the Constitution that voters choices in Presidential elections could be restrained or redirected by another elected body.
The Constitution explicitly allows disqualifications for the Presidency in contrast to Congressional seats, which were at issue in both Powell and Thornton. Article 1 section 3 provides:
Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.
Members of Congress cannot be impeached, and so cannot be disqualified. The President is different. The clause allows criminal indictment, conviction and punishment "according to law." If that "law" provides for disqualification from office, then (arguably) disqualification is precisely what the clause prescribes. The inference is stronger if we could show that, at the time the Constitution was written, "punishment according to law" might encompass disqualification from holding office, and indeed, Blackstone seems to support just such a possibility.
Having said all that, I think it is unlikely the Supreme Court would uphold a Congressional statute disqualifying a candidate from the Presidency -- even a candidate convicted of a crime. The democratic values described in Powell are real, and even Justice Thomas seemed opposed to a Congressional statute disqualifying candidates. Congress's powers are enumerated in the Constitution, and no such power would seem to include the ability to set qualifications for Presidential candidates. If two thirds of Senators vote to convict an impeached official and disqualify them from future office -- which is incredibly rare, having happened eight times in all of America's history -- so be it. A conviction by a local jury is probably not enough.
This leaves open the question of whether a state (rather than Congress) could disqualify someone from a Presidential election. For example, could a state pass a law prohibiting the state's electors in the electoral college from voting for any person convicted of a crime? Conventional wisdom holds that only the 14th Amendment could justify disqualification of Mr. Trump from office, if he is found to have committed "insurrection" in connection with the events of January 6, 2021. The Hill reports attempts to have states preclude Mr. Trump's candidacy on that basis.
Justice Thomas's dissent in Thornton, it seems to me, offers at least one other theoretical possibility. In Justice Thomas's view, states maintain a robust prerogative to govern their elections. In exercising that power, states may want to pass laws disqualifying from federal candidacy -- for Congress or President -- any person convicted of election fraud or interference. This would be an obvious measure for the state to undertake to protect the integrity of elections the state is charged to administer. Justice Thomas is emphatic that states' authority to determine qualifications for candidates in a federal election was "reserved to the States" under the Tenth Amendment. In his view, the Constitution's enumerating candidacy requirements is a minimum, to which states could add if they choose. The Constitution says nothing prohibiting states from doing so. In Thornton, the Court's conservative wing joined Justice Thomas's dissent resulting in a 5-4 decision. Today, the conservative wing of the Court numbers more than four.
States which pass laws along these lines may have an easier time defending them before the Supreme Court. Whether Mr. Trump engaged in "insurrection" -- particularly the sort contemplated by survivors of the Civil War who drafted the Fourteenth Amendment -- is far from clear. What actually happened seems more like election interference, both on January 6 if and to the extent Mr. Trump sought to prevent the election certification, or Mr. Trump's recorded conversation with Georgia Secretary of State Brad Raffensperger to "find 11,000+ votes." A state could reasonably claim that, in executing its duty to administer a Presidential election, persons with a criminal conviction for election interference are disqualified. Allowing such a candidate in the race runs the obvious risk that they will illegally manipulate the election, that the instruments of the state will be unable to respond once the candidate (illegally) assumes power, or at the very least, that the perception of any impropriety would lead to a conflict about the result and potential Constitutional crisis. Nothing in the Constitution prohibits a state from considering such risks and imposing qualifications on candidates in the interests of protecting against them.
One relevant source in this context may be the Massachusetts Constitution, which, ratified shortly before the federal Constitution, includes a disqualification provision which states (Second Part, Chpt. 6, Art. 2):
"no person shall ever be admitted to hold a seat in the legislature, or any office of trust or importance under the government of this commonwealth, who shall in the due course of law have been convicted of bribery or corruption in obtaining an election or appointment."
The types of crimes which support disqualification under this provision are not murder or treason -- such felons could run for office! Persons convicted of one type of crime in particular -- "corruption in obtaining an election" -- are disqualified as candidates, because those criminals can't be trusted in the electoral process. If felons like that are candidates, then the election is not reliably fair. Other felon-candidates can say, "I may be a convict, but the voters have chosen me." When a candidate has a history of election crimes, their running in a new election is not a reliable referendum -- even if they "win," maybe they really lost and paid off the vote counters.
I appreciate the differences -- the Massachusetts provision is referring solely to state positions, and requires a conviction "in obtaining an election or appointment," which nobody alleges against Mr. Trump. Still, the provision shows that states, at the time of Founding, maintained an interest in protecting the integrity of elections by disqualifying persons convicted of election crimes. According to Justice Thomas, this power should be reserved for the states today under the Tenth Amendment.
Importantly, there is a limiting principle in any state's ability to disqualify candidates under this theory: the state must be acting to discharge its duty to administer a free and fair election. States cannot disqualify candidates at will, such as candidates belonging to minority or disfavored political parties (cf., Williams v. Rhodes). Even felons might not be disqualified for crimes unrelated to election law. (cf., Matter of Ferguson, a county court decision in New York from the 1960's). States could disqualify candidates solely for crimes involving interference in an election -- like the Massachusetts provision above -- because a candidate convicted of a crime like that may frustrate the state's Constitutional duty to administer a fair election.
More recently, Justice Thomas reaffirmed his Tenth Amendment framework for analyzing states rights in relation to the Electoral College in Chiafalo v. Washington. The question in Chiafalo was whether states could compel Electoral College delegates to vote for the candidate chosen by the voters. The Court unanimously held that states could do so. The majority opinion, joined by eight Justices, carefully analyzed the textual provisions concerning the Electoral College and the country's history, going back to the first contested election, in which the Electoral College has widely been taken as a formality.
The outcome of Chiafalo is unremarkable -- I would not expect the Supreme Court to revivify the Electoral College after 250 years -- but the reasoning matters. The majority opinion is quite narrow. The majority relied heavily on the country's history that the electoral college will vote consistent with the constituents, and the decision allowed states to compel Electors to vote consistent with that custom and practice. Compelling Electors to vote in any other way -- for example, imposing additional requirements on candidates for President -- might be problematic. It was in this context that the Chiafalo majority footnoted that, "if a State adopts a condition on its appointments [of Electors to the Electoral College] that effectively imposes new requirements on presidential candidates, the condition may conflict with the Presidential Qualifications Clause." The theory I am proposing lives within that "may."
Justice Thomas concurred in the Chiafalo judgement, but filed a separate opinion. In his view, the case was quite simple. States have broad rights to tell Electors in the Electoral College how to vote. The Tenth Amendment guarantees this, and nothing in the Constitution prohibits it. The analysis is notably broad. States could compel Electors to vote consistent with the country's custom and practice for the last 250 years, or states could compel Electors to vote in other ways. The opinion is consistent with Justice Thomas's Thornton dissent, to which it cites. Only Justice Gorsuch joined in Justice Thomas's analysis. Justices Barrett and Brown were not yet on the Court. I have no insight as to why remaining (conservative) Justices declined to join Justice Thomas in Chiafalo. They may have felt the narrower reasoning of the majority was sufficient to decide the case. They may not want to have signaled any willingness to reconsider Thornton. They may disagree fundamentally with Justice Thomas's approach.
What of Justice Thomas's dicta in Thornton that, "the people of a single State may not prescribe qualifications for the President of the United States; the selection of the President... is not up to the people of any single State"? It seems to me this was rejected by -- ironically -- the Supreme Court's decision which terminated legal challenges to the 2020 election by holding that one state (Texas, in that instance) lacked a, "judicially cognizable interest in the manner in which another State conducts its elections." If so, individual states should be free to establish their own laws for assuring free and fair elections -- including disqualifying candidates convicted of election crimes -- and other states should have no say in that.
As a practical matter, the type of disqualification law I am proposing is unlikely to matter much. Red states would be adamantly opposed; blue states are blue anyway; and battleground states probably lack political majorities to pass the law I describe. Obviously Mr. Trump has been convicted of nothing to date, and not even charged with election crimes, although he is reportedly being investigated for that. More generally, I am conflicted about "opening the door" to state disqualification statutes. If one or more states passes such a law, you can be sure states on the other side of the political aisle will retaliate, and it is not unlikely governors and state legislatures will push the limits of who may be disqualified and what types of election crimes are "predicates." Misstating information on a filing form? Failing to disclose some type of funding? Presidential elections are a remarkable political and civic event where tens of millions of Americans -- fiercely debating the issues and candidates -- agree to come together in a common process. Madison and Hamilton's view that the voters should have their say should not be taken lightly.