Q&A of the Day – Can States Ban Convicted Felons from Being On Ballots?

Q&A of the Day – Can States Ban Convicted Felons from Being On Ballots?  

Each day I feature a listener question sent by one of these methods.   

Email: brianmudd@iheartmedia.com  

Social: @brianmuddradio 

iHeartRadio: Use the Talkback feature – the microphone button on our station’s page in the iHeart app.    

Today’s Entry: @brianmuddradio Musing here, but could states pass laws such that convicted felons cannot be on the ballot? I am just wondering what the Democrat end game is here or is it just stage 4 TDS. 

Bottom Line: The short answer to your question is that states can in fact pass laws which prevent convicted felons from being on ballots but, as it pertains to the implications for former President Donald Trump in staying with your either-or scenario, this would be a case of stage 4 Trump Derangement Syndrome. States retain broad authority on how elections may be conducted in their state. States retain absolute authority to determine eligibility standards for races that they regulate. However, states retain no authority to determine eligibility standards for what they don’t have the authority to regulate.  

Operating as the ultimate “laboratories of democracy” states historically and regularly adjust election related laws as we’re well aware of in Florida. The result is that there are literally no two states with identical election laws. From voter eligibility, to voting methods and timelines, to the collection of ballots there are 51 different sets of standards (Washington D.C included) in play. And just as there are different voting standards, states commonly have different candidate eligibility standards. While no state currently allows for a convicted felon who is still serving time to hold elective office within their state – there are several differences when it comes to former felons becoming eligible to run for and hold public office. Many states have moved to a model where one is automatically eligible to run for office as soon as the rest of their civil rights are restored. Others call for an additional review process by a state authority to take place for a final determination. Other states call for a minimum waiting period after the restoration of civil rights that may or may not include an additional state review process. For example, Florida’s law governing felon eligibility currently states that former felons are eligible to run for public office once their civil rights are restored, however they must first undergo a formal review process by the Florida Commission on Offender Review and Office of Executive Clemency. That review process is the final arbiter of eligibility. But that process, and any state’s process only applies to elected offices within the state.  

The 14th Amendment governs federal office eligibility, and no state retains any lawful authority to place any restrictions on federal office holder eligibility. This means that not only may a convicted felon be elected President of the United States, as has been regularly discussed in the context of Donald Trump’s indictments...this also means a convicted felon may run for and be elected to Congress. The constitution states for members of Congress the only requirements are:  

  • All members of the House must be at least 25 years old, and members of the Senate must be at least 30 years old. 
  • Members of the House must have been a U.S. citizen for at least seven years, and members of the Senate must have been a U.S. citizen for at least nine years. 
  • They have to be an “inhabitant” of the state “when elected.” 

In the case of presidential eligibility, it’s 35 years of age and one must be a natural born citizen. In fact, not that long ago we had an example of this come up in a South Florida congressional race. You may recall that the Republican nominee in the special election to fill the late Alcee’s Hastings seat, was the now also late, Jason Mariner. Jason was a former felon who’d had his civil rights restored. However, he’d never undergone the state’s formal review process for candidate eligibility as previously mentioned. Many state and local news agencies attempted to make hay with this suggesting (conveniently after he won the primary) that he wasn’t eligible to run under Florida law. The Constitutionally illiterate arguments of these news agencies went nowhere, and he was on the general election ballot. There’s nothing a state may pass to supersede federal constitutional authority regarding eligibility. 

Now, today’s question did specifically focus on whether states could pass laws to try to keep Trump off of the ballot should he become a convicted felon – perhaps forcing voters to have to write him in if they wanted to vote for him. They could try, but legally they would fail for two reasons. First, the effort would almost certainly be struck down by the federal judiciary as it would be a capricious move. One clearly targeted to prevent one specific candidate from winning an election which is unconstitutional. Second, it would most likely be a moot point.  

If Donald Trump is the Republican nominee for president, he would automatically appear on all 51 ballots as the Republican Party currently qualifies for automatic inclusion on all 51 ballots. There are no restrictions under any state law or in the District of Columbia pertaining to felon status eligibility for ballot inclusion under a qualifying party. So, yes TDS is a thing, there are obviously two tiers of justice, and the bottom line is that if Trump’s the Republican nominee he’ll be on the ballot in all 50 states and in the District of Columbia, even if he’s convicted by jurors in the District of Columbia.   

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