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National Public Interest Requires Timely Candidate Disqualifications

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By David L. Baker and Ann Marie Johnson
December 1, 2023

The consternation raging around possible “candidate disqualification” in the 2024 election screams for resolution. Enforceability of the U.S. Constitution’s Section 3 of the 14th Amendment, referred to as the “disqualification clause,” stimulates heated debate. The nation’s public interest, those interests shared by all of us, requires that candidate disqualifications, if any, happen sooner rather than later.

A secretary of state (SOS) shoulders responsibility for election integrity in their respective state. Time is of the essence for them to ensure that upcoming elections spare us legal and political train wrecks over post-election disqualifications. Forewarned, SOSs surely will be blamed for any harm resulting from inaction. 

Prospective Impacts

Primary elections rapidly approach, but candidate names for ballot printing become public much earlier. For example, in California, the most populous state, the SOS announces candidate ballot listings no later than December 8, 2023, for its March 2024 primary.

Many voters already have an inkling of the chaos that looms over potential candidate disqualifications post‑election. Since December 2020, our country has churned weekly with political turmoil and unsavory global media coverage in the wake of continuing election controversies. The disruptive influence and escalating taxpayer costs associated with this tragic period diverts attention from critical public policy issues while consuming precious public resources. Certainly, we do not want to revisit a similar national horror across many, if not all, of our fifty states for several more years. 

Rule of Law Support

American voters continue to exhibit political polarization. Yet, despite obvious state and national divisiveness, an August 6, 2023, CBS News/YouGov survey finds a substantial majority of Americans (57 percent) favor “upholding the rule of law” with respect to the investigations into 2020 election denialism.

University of Pennsylvania Law Review (UPLR) article raises rule of law issues under the disqualification clause. It reminds us that those elected officials who previously swore to support the Constitution face accountability for disregarding their oath. The UPLR compellingly argues for the disqualification of candidates who “engaged in insurrection or rebellion” or gave “aid and comfort” to participants trying to overthrow elections. 

Convenient Skepticism

Some SOSs are unpersuaded by the UPLR article according to CNN. Inaction benefits them. It is convenient. It is safe. It reduces work. But does their recalcitrant inertia serve the public’s interest?

These top election officials contend they do not have the authority to disqualify candidates: that courts should rule on those issues. Their position ducks their responsibilities for public interest stewardship. It misleadingly hides behind unfamiliarity about the court’s role regarding the rule of law. Courts do not strike out and unilaterally initiate interventions. They decide issues properly brought before them. Who has the responsibility to bring candidate disqualifications issues to court?

Public Interest Path Forward

Candidate disqualifications are a “damned if you do, damned if you don’t” proposition. More importantly, they also represent a public interest issue that we, the people, entrust to our public service officials. On behalf of our collective public interest, SOSs should petition the appropriate court for declaratory relief, the resolution of legal rights, about disqualifications.

Timing is huge. SOSs should not run out the clock on their voters. Prompt action can forestall predictable legal and political pandemonium later. Yes, there is a chance that such initiative may spawn some opposing litigation. Yet, a far greater probability of post-election disruptions and costly taxpayer lawsuits hang in the balance without judicial clarification now.

Call for Public Interest Leadership

Legal and factual issues on disqualifications need to be dealt with before, not after, primary elections. Otherwise, disdainful disqualification dramas later become more problematic as issues mushroom and costs multiply. Reasonable remedies for removal from office and refilling vacated positions after an election are both messy and expensive. Everlasting election disputes distract governance attention from other pressing public priorities. 

SOSs are bound to uphold the rule of law, including the disqualification clause of the U.S. Constitution. This is our nation’s prudent democratic norm, until legislatively changed or judicially invalidated. When and where enforceability requires judicial clarification, the declaratory relief route is more politically neutral.

SOSs, those we hold responsible to preside over election integrity, should serve as initiators of prompt declaratory relief in our common public interest. Their indispensable leadership in resolving candidate disqualification issues also must be informed by the expertise of their respective Attorney Generals to provide voters with legally defensible ballots. While some SOSs may try to dodge their fundamental public interest responsibility, voters are best served by supporting timely judicial review of the disqualification clause.

Author: David L. Baker is professor emeritus of public administration, California State University, San Bernardino. He has 30 years of experience in public agency management, including more than 12 years as chief executive officer in two California counties. His research interests revolve around public budgeting, public management, e-government, organizational behavior and the scholarship of teaching. He may be reached at [email protected].

Author: Ann Marie Johnson is professor of management, California State University, San Bernardino. She received her JD/MA from the University of Cincinnati and PhD at the University of Albany. She worked at the Michigan Court of Appeals and U.S. Department of Housing and Urban Development in Washington, DC. Her research interests include law, social equity, regulation and human resources. She may be reached at [email protected].

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