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The Colorado Supreme Court has ruled that Donald Trump cannot appear on the Republican Primary ballot because he engaged in insurrection, contrary to Section 3 of the 14th Amendment (with the order stayed "until January 4, 2024, subject to any further appellate proceedings").

However the timing on this is tight. A determination of who is eligible to appear on the ballot has to be made shortly after the new year in order to meet various legal deadlines. Other states have similar deadlines, and the whole thing hinges on review by the Supreme Court, which might or might not meet those deadlines.

So lets suppose that in one or more states ballot papers are printed and (where appropriate) posted to voters. Then a determination is made that Trump cannot be president due to engaging in insurrection.

What happens next? Could the Primary ballot be rerun? Or do they just pick the runner-up?

Jen
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Paul Johnson
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2 Answers2

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Timing matters. In the state of Washington, for example, RCW 29A.36.180 addresses disqualified candidates (in non-partisan elections). The law addresses two possibilities, when there is a primary, and when there is not, then whether ballots for the general election have been ordered, or not. In no circumstance are votes awarded to someone else. The rule is basically that the disqualified candidate is ignored and any votes for the candidate are not counted.

Presidential primaries are a special case, since there is no constitutional mandate to have a primary and in Washington there were no presidential primaries in the old days (we had caucuses), so this is a matter for the particular party. In fact, minor parties do not participate in the primary election system. RCW 29A.56.031 states that

Each party must determine which candidates are to be placed on the presidential primary ballot for that party. The chair of each party must submit to the secretary of state the names of the candidates to appear on the ballot for that party no later than sixty-three days before the presidential primary. Once submitted, changes must not be made to the candidates that will appear on the ballot.

That means that once submitted for the primary election, the government cannot remove the candidate. The relationship between the primary election and "who wins at the convention" is impossibly complicated to describe: needless to say, there is no automatic relation between "won the primary" and "was the party's nominee" in the case of the presidential election.

It would require an extensive state-by-state (plus territory) survey of electoral laws to determine whether a person can legally be excluded from the presidential primary. In the case of Hassan v. FEC (not native born citizen disqualified presidential candidate), plaintiff was denied FEC funding as candidate for the Democratic party. The court ruled that he was not eligible for funds, which is a very different issue – this happened 4 years before the intended primary.

The Editor
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user6726
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As background, Colorado's process for nominating Presidential candidates has been quite fluid in recent history. Often, there is a Presidential primary months before partisan primaries for other offices (affording a second chance to vote that isn't very disruptive if necessary). Some years, Colorado has had a caucus rather than a primary for the Presidential race, and the two major political parties don't always nominate their Presidential candidates in the same way or at the same time.

Lots of things could happen. If the U.S. Supreme Court stayed the Colorado Supreme Court ruling pending its consideration of the case on the merits, another Colorado court could put the Colorado Republican primary on hold until SCOTUS decides it. Or, the state legislature might pass a bill postponing or dispensing entirely with one or both Presidential primaries.

If this didn't happen and the primary election was held, the results might be invalidated and the nomination from the state might be left to the caucus process or the party leadership, the state's Republican party might send uncommitted delegates to the national convention, the resolution could be moot if someone else won the GOP primary in Colorado, or the runner up in Colorado might get the state's GOP delegates to the national convention.

The exact wording and language of a SCOTUS stay and of a status ruling, state court actions, internal Colorado Republican Party actions, and national Republican Party actions (particular the actions of the credentials committee) could all matter. Colorado law can regulate how the Colorado Republican Party nominates its delegates to the national Republican Convention where the Republican party chooses its delegates, but can't control whether the national Republican Convention will accept those delegates as valid.

This would be a basically unprecedented situation. The law is quite prescriptive about how the process is supposed to work. But when some unavoidable external circumstance throws a wrench in the works, the relevant actors in the process have considerable leeway to fashion remedies in that situation.

ohwilleke
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