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Do states have the authority to refuse to list presidential candidates from major parties on their ballots? It is my understanding that the states administer Presidential elections.

Update: https://abcnews.go.com/Politics/trump-ineligible-run-president-jan-6-colorado-court/story?id=105785727

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    It is worth noting that there are almost always many Presidential candidates (not from the two major parties) who are on the ballot in only some states and not in others. It would be unprecedented for one of the two major party candidates to not be on a state ballot, but it wouldn't be different in kind from what happens to third-party candidates each year.
    – ohwilleke
    Nov 6, 2023 at 21:04
  • Abraham Lincoln in 1860 seemed to not be on the ballot at all in 8+ states, but likely various rules have since changed. Nov 7, 2023 at 11:26

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The US Constitution hardly says anything at all about how a Presidential election must be held, except that states can pretty much do whatever they like:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

[...]

The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

The Twelfth Amendment has more to say about what those electors actually do once they have been selected, and several amendments prohibit states from restricting "the right to vote" in various ways, but there's nothing about ballots,* in part because the secret ballot was not introduced in the US until the late 19th century.

In the early years, voters simply declared their vote aloud for everybody to hear, and poll workers tallied it. There could be no question of whose names should appear on the ballot, for there was no ballot. After the secret ballot began to catch on, for a while pre-filled ballots were often printed by partisan newspapers, which could then be dropped directly into the ballot box by sympathetic readers. Since these ballots were not provided by the state, they were effectively unregulated, and could include whatever name the newspaper liked. Wikipedia says that this method of voting was only fully phased out in 1950 (when South Carolina stopped allowing it).

Of course, each state will have its own laws about whose name may or may not appear on the ballot - in practice, a nominee for one of the two major parties has automatic ballot access in all fifty states (plus DC). But a state that wishes to impose additional requirements on ballot access is entirely within its rights to do so, provided that whatever procedure it uses does not violate the Fourteenth Amendment (which was a problem in Bush v. Gore). This means that the state must treat candidates fairly (equal protection) and provide some kind of due process for challenging individual determinations (most likely, either some kind of administrative hearing, or a hearing in state court).

Another important part of this that should probably be emphasized: The US Constitution does not require states to hold a "regular" Presidential election at all. States are required to "appoint" electors (members of the Electoral College), and 3 USC 1 requires that appointment to take place on "election day" (which the statute defines in the usual way - as the day in November when "regular" people vote, not the day in December when the Electoral College votes). All fifty states and DC hold a statewide election in order to appoint Electoral College electors, but neither the Constitution nor the US Code actually require them to do that. It would not make sense to require a uniform ballot federally, when there is not even a requirement to hold an election in the first place.


* There is a very brief mention in the Twelfth Amendment that says electors must vote "by ballot" for President and Vice President. As far as I can tell from Google Image Search, these ballots are either blank (write-in), or have the name of the candidate printed on them (the electors are pledged to vote for specific candidates in advance, so it is possible to pre-print their ballots with the correct name).

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    Bush v. Gore, for what it is worth, expressly disavows its status as a binding precedent in future cases. Congress probably could mandate a uniform slate of candidates by statute, but hasn't done so.
    – ohwilleke
    Nov 7, 2023 at 1:44
  • @ohwilleke: Actually, I disagree with you. The powers granted to Congress in Article I Section 4 (pertaining to election administration) are limited to "elections for Senators and Representatives." There is nothing in the text of the Constitution that explicitly authorizes Congress to legislate as to the manner of holding a Presidential election (aside from very vague things like Section 5 of the Fourteenth Amendment).
    – Kevin
    Nov 7, 2023 at 1:54
  • The express authorization to regulate in the 12th Amendment, the enforcement powers in the 13th, 14, 15th, and other election related amendments, and the power to regulate other federal elections, taken together is a pretty easy call for the courts to find that a common list of candidates is within the authority of Congress to mandate. We won't know, however, unless Congress tries to do so.
    – ohwilleke
    Nov 7, 2023 at 2:09
  • @ohwilleke Actually, a uniform ballot (I take it that's what you mean by "slate"; usually "slate" refers to a set of candidates supporting each others' candidacies) of candidates would be clearly unconstitutional, at least as applied to the particular set of facts of a presidential and vice presidential candidate being from the same state. Such a ticket would be barred from running in that state, so a uniform ballot would have to bar them from running in all states. Nov 7, 2023 at 3:25
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    @ohwilleke: I could not find any express authorization for Congress to enact any kind of law in the 12th Amendment, so I'm having trouble understanding what you are talking about. Congress does have the power to count the Electoral College's votes, and to conduct a contingent election, but there's nothing about the election that chooses members of the Electoral College. Indeed, the 12th does not explicitly contemplate that the Electors will themselves be elected at all - a state could appoint them, and hold no regular election whatsoever.
    – Kevin
    Nov 7, 2023 at 4:58
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Yes. Most (or all) states also have procedures that allow people to challenge the placement of a candidate on the official ballot who is not eligible to hold the office for which the candidate has filed. See e.g. Minnesota's. This would be used to strike or preclude someone from a state's presidential ballot if the would-be candidate (among other ineligibilities):

  • is under the required age,
  • is not a natural born citizen, or
  • 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, has engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof (if the arguments of the challengers in several current petitions is correct).

As for whether section 3 of the the 14th amendment in fact renders Trump ineligible, that is the topic of ongoing litigation, as well as William Baude and Michael Stokes Paulsen's article, "The Sweep and Force of Section Three" (forthcoming 2024) 172 U. Pa. L. Rev. The meaning of "enemies thereof" is also discussed at another Q&A on this site: In Section 3 of the 14th Amendment, what does "enemies thereof" refer to?

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    Just for clarity, presidential elections are conducted at the state level and each state has its own procedures for qualifying parties, candidates, and voters. There appear to be two levels at which a candidate could be challenged or barred: The first would be qualifying as a primary candidate, which can have many bureaucratic requirements such as gathering signatures; but the second would be when the state's top election official procedurally approves placing the national nominee from each qualifying party on the state's ballot. Nov 6, 2023 at 22:12
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    @jeffronicus another level at which the issue could be contested is after the vote count. Even if not on the ballot, it is possible for a candidate to win through write-in votes. Nov 6, 2023 at 23:47
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    There is a decent argument that if e.g., Trump were to lose the Section 3 argument in a finally litigated case in Colorado (either not taken up by SCOTUS by cert, or affirmed by SCOTUS on cert) that the collateral estoppel effect of this ruling would keep him off the ballot in every state where a Section 3 argument is raised. The finding that he is not qualified to run for President as a matter of federal law would bind him.
    – ohwilleke
    Nov 7, 2023 at 2:12
  • If the candidate is not eligible to hold the office, does it matter if they're on the ballot? Votes for them will effectively be nullified. Also note that we don't actually vote for the candidate, we vote for electors.
    – Barmar
    Nov 7, 2023 at 16:37
  • @ohwilleke, "The finding that he is not qualified to run for President as a matter of federal law would bind him." So would this be derived from the specific qualifications for president listed in the Constitution (age and residency), or would such a ruling override those qualifications?
    – ouflak
    Nov 7, 2023 at 17:38
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In general yes.

A twenty year old would be bared from being on a presidential ballot everywhere by local action/decision.

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  • The question hs since been clarified to be about the Presidential election.
    – Barmar
    Nov 7, 2023 at 16:41
  • I edited my answer. Nov 7, 2023 at 22:38

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