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The purpose of this question is NOT to promote Trump nor is it for the opposite.  So any rants either way will NOT be answers to the question.

Twice, a presidential candidate has been in prison during the campaign.  I am not aware of any precedent on what would/could happen if either had won.  But what I am curious about is how many states (if any) prohibit someone already convicted and still in jail/prison to be put on the ballot for any office.

Tried to do a web search, but all the hits were on whether or not a prisoner is allowed to vote.

3 Answers 3

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Section 3 of the Fourteenth Amendment states:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

This was originally intended to bar former Confederates after the Civil War. Some have attempted to use this clause against candidates based on their public statements about the riot at the Capitol on January 6, 2021, or their having encouraged people to protest in the capital city on that date (but not to riot), or for having given tours of the Capitol as a form of constituent service to people they were unaware would later attack the building. These arguments have thus far been rejected.

Some people accused of taking part in the riot itself were state legislators or former military officers, to whom the disqualification clause would apply. There has yet to be any legal ruling on whether they would be disqualified.

The Congressional Research Service has written,

Determining who has engaged in either of the two disqualifying activities, that is, engaging in insurrection or rebellion or giving aid or comfort to an enemy, is likely to be a difficult task given the scarcity of precedents and lack of clear definitions.

Some states have particular crimes that disqualify someone for office. For example, a 1951 Washington state law disqualifies from holding or running from any office someone who has been convicted of certain “subversive activities” in the state of Washington, such as to

Commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of Washington or any political subdivision of either of them, by revolution, force or violence

In a quick search, I was unable to find any precedent for this having ever been applied.

Several states have broader restrictions on felons’ eligibility for state offices.

Often, there are additional requirements for particular offices. For example, the Texas state Constitution requires all judges to be licensed to practice law, and convicted felons cannot be licensed to practice law in Texas.

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  • This qualifies as an answer, though I’d like to know more. Fourteenth only applies for the specific crimes listed. Sixth of January may have triggered my question, but my interest is broader than that.
    – WGroleau
    Jul 28 at 15:35
  • @WGroleau A lot of people would like to know that, too.
    – Davislor
    Jul 28 at 15:38
  • There's every likelihood that courts would deem any questions of eligibility under Section 3 to be nonjusticiable, holding that these questions are more appropriately addressed through the electoral process.
    – Michael
    Jul 28 at 18:56
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There are no such laws

The President must be (Constitution Article II Section 5):

  • a natural-born citizen
  • at least 35 years old
  • an inhabitant of the US for 14 years

They may not have served more than 2 terms (Twenty-second amendment).

They must not have been impeached by the House and convicted by the Senate of "Treason, Bribery, or other high Crimes and Misdemeanors" and barred from office (Constitution Article 3, Section 4). Conviction by any other court is irrelevant.

Any other fetters on a candidate would be unconstitutional.

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    "Any other fetters on a candidate would be unconstitutional" I don't think that's true. States are allowed to choose for themselves how they select their electors in the Electoral College; at the moment all states have chosen to have a public vote and the electors either vote for the candidate that won, or split their votes according to the proportion that voted for each candidate. I see nothing in the US constitution that would prevent states legislating either that felons may not enter their vote or that electors may not vote for felons. Jul 27 at 6:57
  • @MartinBonnersupportsMonica and how does any of that prohibit a person from being a candidate? It might affect their chances of winning but it doesn't bar candidature
    – Dale M
    Jul 27 at 8:43
  • If California (for example) bans felons from standing in their presidential election, that stops a person from being a candidate in California (doesn't it?) Obviously it doesn't stop them being a candidate in Texas. Jul 27 at 9:24
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    @WGroleau a state cannot impose additional requirements on qualifications for Presidential or Congressman candidates.
    – Dale M
    Jul 28 at 8:59
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    @MartinBonnersupportsMonica States cannot arbitrarily restrict someone from running for president (including excluding them from the ballot) because when the constitution enumerates requirements, courts have interpreted that to mean additional requirements would be unconstitutional.
    – Michael
    Jul 28 at 18:50
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The Constitution is very clear on the process for electing, and removing, a President. A person duly elected by the Electoral College and certified by Congress would become President at 12:00 pm on Jan 20 regardless of their carceral status, and remain President until impeached, declared incompetent under the 25th Amendment, or their term expired four years later on Jan 20 at noon.

This is important because in situations where the Constitution lays out clear, explicit requirements, courts have interpreted that to mean that additional requirements would be unconstitutional. For example, a state could not pass a law raising the minimum age to get on the ballot for a Congressional seat.

While there may not be any laws or precedent directly addressing the case of a Presidential candidate, we can make inferences from similar situations where someone holding federal office was unable to execute their duties due to being incarcerated.

For example, Nixon v. United States, 506 U.S. 224 (1993):

After petitioner Nixon, the Chief Judge of a Federal District Court, was convicted of federal crimes and sentenced to prison, the House of Representatives adopted articles of impeachment against him and presented them to the Senate. Following proceedings pursuant to Senate Rule XI-which allows a committee of Senators to hear evidence against an impeached individual and to report that evidence to the full Senate the Senate voted to convict Nixon, and the presiding officer entered judgment removing him from his judgeship.

Here we have a Federal Judge who was convicted and imprisoned but refused to resign. The fact that the House proceeded to impeach him and the Senate convict him reflects that (at least at the time) there was enough of a consensus that a criminal conviction alone was not enough to disqualify Nixon from an office he had already qualified for. The same would hold true for SCOTUS, Congress, and the President/Vice-President.

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  • Again, the question is not about the president, nor is it about ability to perform duties. It is about whether any state’s laws prevent the incarcerated from being on the ballot in that state. Qualifications for getting on the ballot are determined by the state, not by Congress nor by the Constitution.
    – WGroleau
    Jul 28 at 15:34
  • @wgroleau States cannot impose additional requirements for candidacy for federal office. Requiring a number of signatures is a litmus test of support; disqualifying someone because they're incarcerated is an unconstitutional requirement.
    – Michael
    Jul 28 at 16:36
  • I also didn't specify federal office. But keeping them off the ballot IS imposing additional requirements.
    – WGroleau
    Jul 28 at 17:28
  • @WGroleau The presidency is a federal office, so my statement would apply to candidates for President. As you say, keeping them off the ballot would be imposing an additional requirement, which is why states would be prohibited from doing so.
    – Michael
    Jul 28 at 18:40
  • But states DO have limitations on who can be on the ballot. The question is whether any have a limitation for convicted folks still in prison—for ANY office, not just president.
    – WGroleau
    Jul 28 at 23:36

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