“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
That is it regarding Article II, Section 1 and the requirements to “BE” president of the United States. There is nothing in the Constitution that requires a president of the United States to release his tax returns, for example. Likewise, there is nothing in the Constitution regarding requirements to “RUN” for president of the United States.
There is, undoubtedly, a significant difference between holding the office and running for office.
Moreover, establishing specific election rules has been delegated to the individual states for the most part within certain parameters established by the Voting Rights Act of 1965.
Now, I recognize that the Supreme Court has held some rulings on the issue of office holding qualifications.
In U.S. Term Limits, Inc. v. Thornton (1995), for example, the court ruled that “states cannot impose qualifications for prospective members of the U.S. Congress stricter than those specified in the Constitution.”
The specific qualifications for serving in the Congress stated in the Constitution (Article I, Sections 2 and 3) are: “No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.” For the senator the requirements are: “No person shall be a senator who shall not have attained to age thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state for which he shall be chosen.”
Once again, the focus is on qualifications for holding elective office, not running for elective office.
Of interest, in his dissenting opinion, Clarence Thomas pointed out that “Nothing in the Constitution deprives the people of each state of the power to prescribe eligibility requirements for the candidates who seek to represent them in Congress. The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to an action by the states or the people.”
This observation is critical. From this perspective, it is clear states have the right to impose specific requirements regarding running for president and, by doing so, significantly impact the election of a President of the United States. The Constitution clearly gives states the power to set rules for how presidential elections are held within its borders.
For those of you who listened to my interview with Congressman and Constitutional law scholar Jamie Raskin on April 5, you will recall that I did ask him about his view on this issue.
The Congressman did say that it was his understanding that the court rulings were intended to cover the track leading to the office: “Access to the ballot is co-extensive to access to the office.” This would, then, include a run leading up to holding the office. However, he also indicated that the specific issue has never been thoroughly tested in the court and it was worth the effort to do so.
It is also noteworthy that prior to the 2000 presidential election, only one election resulted in the election of a president who won the electoral college but not the popular vote. That election occurred in 1876 when Republican nominee Rutherford B. Hayes defeated Democrat Samuel Tilden in the electoral college while losing the popular vote.
Since 2000, this anomaly has occurred twice with the elections of George W. Bush over Al Gore and Donald J. Trump over Hillary Clinton.
What to do, what to do, what to do?
Well, in addition to testing in the courts the authority of states to impose stricter requirements for running for president in their state primaries, there is a lot that can be done.
Certainly, we have come to a point in our presidential elections that something must be done to address the drowning out of the voice of the people by an archaic election method that only applies to the presidency. The electoral college does not apply to any other elected offices and which was intended as a protection to prevent unqualified candidates from rising to the office of the presidency and not to result in an unqualified candidate becoming president. With the election of Donald J. Trump to the presidency, the electoral college clearly is failing to do what it was designed to do.
Of note, state senators in the state of Washington did just pass by a vote of 28 to 21 on a bill that would require candidates running for president to release five years of tax returns before they could appear on either a primary or general election ballot in the state.
Some 25 states have proposed similar bills in recent years. More states should do so. Again, there is a major difference between running for and being president. Of note is the fact that the New Jersey state legislature approved a similar measure in 2017 only to be vetoed by then Republican Governor Chris Christie. Well, that is no longer a concern.
Or maybe of even more significance is another effort underway to make the vote of every voter equally important and not continue the practice of allowing voters in so-called swing states to take on more significance than voters in all of the other states.
That effort is the National Popular Vote Bill.
The National Popular Vote Bill will take effect when enacted into law by any combination of states resulting in a popular vote total of 270 electoral votes. To date, it has been enacted into law in fourteen jurisdictions accounting for 189 electoral votes.
The jurisdictions so far are California, Colorado, Connecticut, District of Columbia, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Rhode Island, Vermont, New Mexico and Washington. I haven’t noticed any so-called “red” states, have you? Wonder why.
What the bill does is change how each individual state allocates its electoral votes. Rather than the usual practice of allotting electoral votes to the candidate who wins the popular vote in the state, the bill commits the state to allocate that state’s electoral votes to the candidate who receives the most popular votes in the nation.
For the bill to have a significant impact on the results of a presidential election, the bill will need to be enacted in additional states possessing another 81 electoral votes. It is getting ever so close. In 2019 the bill passed both legislative chambers in Delaware and one legislative chamber in Arizona, Arkansas, Maine, Michigan, North Carolina, Nevada, Oklahoma and Oregon.
To appreciate the potential impact of this bill, just consider how history would have been impacted if just a few of these states allotted their electoral votes based on the popular vote of the nation and not that of the individual state. Think North Carolina and Michigan alone. Think not having to have experienced the national embarrassment that is the Trump presidency.