The Constitutional Challenge to Donald Trump being on the ballot in Pennsylvania

NeuwirthLawCourts, In the News

I think it is safe to say that Trump’s eligibility as a candidate will be challenged. There was a long article by Judge Luttig in the Federalist magazine of all places making the case for Trump being disqualified under the 14th Amendment’s disqualification clause for those who aided, abetted, or gave comfort to insurrection, when they had previously sworn an oath to defend the Constitution. I have no idea whether this will succeed or not. I can assure you that the argument will be raised by democratic challengers.

I handled election cases for a while earlier in my career because they were fun and interesting and involved rapid evaluation and argument. Cases in PA involving statewide office have original jurisdiction in Commonwealth Court before a single justice and then are appealed directly to the PA Supreme Court. The case will get a rapid appeal up to the Pennsylvania Supreme Court regardless of outcome in Commonwealth Court. One of the amusing things about the election dockets is that there is a huge pressure to have them heard and resolved before the ballot is printed and distributed. So, that means that most challenges to someone being on the ballot are resolved in the two months between submitting their paperwork and petitions and the ballot being ready. That is very fast for lawyers and the Commonwealth Court sets aside a large chunk of time every election cycle for these cases.

So, does Trump get on the ballot? It is hard to game this one out. On one side, the current Pennsylvania Supreme Court has a democratic tilt and you would guess that they would side with the Constitution’s disqualification clause. On the other hand, the fundamental presumption of every election case is that the Courts would prefer that a candidate be on the ballot for the voters to decide rather than have the Courts make decisions. I could see this being a very, very tough call for the Supreme Court judges. The United States Supreme Court has made clear that it will leave a lot of election and ballot decisions to the State Courts. However, I would guess that the PA Supreme Court’s ruling against Trump being on the ballot would be appealed rapidly to the US Supreme Court and there would run into a republican court, which would place him back on the ballot.

That’s my best guess. Nice try guys. Now, fight it out at the ballot box. Nota bene or p.s. or fyi, a lot of lawyers will be paid a lot of money and lose a lot of sleep getting back to this point.