Requirements to Hold Public Office, Primaries, Political Parties, and the General Election
The Colorado Supreme Court decision. Issues of Constitutionality. What this event truly reveals.
Current events and continuing volatility in the election process creates the need to review what are traditional processes and methods for determining representation. What is the legality of courts and legislatures to actively determine eligibility for office of any candidate? Is the election process as constitutional as WE have perceived it to be?
Requirements to Hold Office
The Constitution clearly provides the requirements for holding elective office at the federal level. Correspondingly this also exists at the state level. Each state constitution having established the requirements to hold elective office. These prerequisites are not subject to Congress or any of the respective state legislatures. No court in the land can apply any standard but the literal standards in the United States Constitution or the respective state constitutions. The only possible exception is the 14th Amendment. Which will be addressed.
There is nothing that prevents any citizen from registering for any of the elective offices. Their only requirement is that they meet the Constitutional qualifications for that office.
Article I, Section 2, Clause 2: Qualifications for the House of Representatives
“No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.”
https://constitution.congress.gov/browse/article-1/section-2/clause-2/
Article I, Section 3, Clause 3: Qualifications for the Senate
“No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.”
https://constitution.congress.gov/browse/article-1/section-3/clause-3/
Article II, Section 1, Clause 5: Qualifications for the Presidency
“No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.”
https://constitution.congress.gov/browse/article-2/section-1/clause-5/
Qualifications for any elective office in any state are defined by their respective state constitutions. Please take the liberty to read any of the state constitutions of interest.
After the civil war the Constitution was amended with the 14th change to the original document. It included a conditional prohibition on holding any position of public trust. This amendment is being used to deny individuals from seeking elective office on both sides of the political aisle. It is political dialog trying to dominate Constitutional standards of both the election process and the application of justice.
The Colorado Supreme Court in a 4-3 decision decided to remove a candidate from the primary ballot using insurrection as the basis of the decision. Certain talk show hosts recommend the same behavior focused on the opposition and now some state legislators are moving to perform the same effective act to on the political opposition. Thus the central questions. Do state courts and state legislatures have the authority to invoke section 3 of the 14th amendment? Is the current use of the 14th Amendment, Section 3 being properly applied? The answer to both questions is no.
14th Amendment, Section 3: Disqualification for Holding Office
“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.”
https://constitution.congress.gov/browse/amendment-14/section-3/
“The Office of the President does Not Apply” argument. The Office of the President DOES apply to the conditions in described in the 14th Amendment, Section 3. “or as an officer of the United States”. The President is the “Chief Executive Officer” of the United States. It is the ONLY ELECTED position in the executive branch of the United States. Article VI, Clause 3 “REQUIRES” anyone holding a position in government to swear an oath to uphold and defend the Constitution. Article VI, Clause 3 like the 14th Amendment, Section 3 does not specifically call out the Office of the President. “and all executive and judicial Officers, both of the United States and of the several States” Yet it is inferred. NO president including George Washington has failed to take the oath to the Constitution. It is a requirement to hold office from the start. Again. It is the Oath of Office the confers the mantle of authority of that office to whomever legitimately swears their obligation to the Constitution. Constitutional language is specific. An Officer under Article VI is an Officer under the 14th Amendment.
“insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” This is the language of treason. There is a lot of mincing words about whether insurrection or rebellion is treason. Originally this legal term in effect made insurrection and rebellion the same as treason. The modern definitions delineate whether the United States is in a state of war. Was the civil war an insurrection, rebellion, or treason? All of the above? Political dialog is not the same as legal language. It is much less precise and subject to the biases of the speaker and listener. The ambiguity of the proper meaning of these terms causes confusion and opens the door to both the inability to have an honest debate and inhibits proper application of justice.
Also overlooked in this dialog is “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” As with Article VI, Clause 3 there is a high value placed on the Oaths taken. A legal obligation placed on the holder of any position in government through the “Oath of Office”. A principle lost in this era. Section 3 of the 14th Amendment reinforces this lost value. The Oath of Office is a critical element to fabric of this Republic.
There is nothing in the 14th Amendment that creates authority in any branch of state government (Ref. 14th Amendment, Section 5) to proactively invoke the provisions of clause 3. Only Congress is authorized to invoke any of the provisions of the 14th Amendment. State government is limited to compliance with the 14th Amendment. Which is why it was ratified at in the first place. To force state compliance with civil liberties and prevent more of what had just passed in the enduring of the civil war.
14th Amendment, Section 5: Enforcement of the 14th Amendment
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
https://constitution.congress.gov/browse/amendment-14/section-5/
Was there an Insurrection?
Depending upon the political perspective of each person. The event on January 6th 2020 is viewed through diametrically opposite viewpoints. If it was an insurrection. Where were all the armed insurrectionists? When does a protest become an insurrection? When does a riot become an insurrection? The word insurrection being used to inflame the passions of the populace.
https://legal-dictionary.thefreedictionary.com/insurrection
https://www.britannica.com/topic/insurrection-politics
Regardless of the answer to these questions. No one seeking elected office in the 2024 election has been charged or found guilty of insurrection, rebellion, or treason. Meaning that none of these legal definitions used in the 14th Amendment can be applied to any of the candidates. This makes the Colorado Supreme Court decision an illegal judgement which is equivalent to a “Bill of Attainder”. It is denying a civil liberty to both the candidate and the voter without Due Process and the Equal Application of the law. The same can be said of those reacting in opposition to this decision and attempting to apply the effects of this abuse of judicial power back towards the opposition.
https://legaldictionary.net/bill-of-attainder/
Article I, Section 9, Clause 3:
“No Bill of Attainder or ex post facto Law shall be passed.”
https://constitution.congress.gov/browse/article-1/section-9/clause-3/
Article I, Section 10, Clause 1:
“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
https://constitution.congress.gov/browse/article-1/section-10/
Article III, Section 3 could also have bearing depending on the meaning of treason and what the legal term encompasses. Whether it applies or not. It is still good to be aware of this section of the Constitution. Note: Again the authority is Congressional. Nothing to do with the respective states.
Article III, Section 3:
“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
“The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”
https://constitution.congress.gov/browse/article-3/section-3/
Primaries
The Constitution only addresses the general election. It does not envision primary elections. The only reason there are primaries is for political parties to determine their nominees. The eligibility of any political party’s choice for any electable office is only a concern if they win the party nomination for the office they are running for. It is for each party and state secretary (after the nominee is determined) to decide whether anyone applying for public office meets the constitutionally proscribed standards. This means that eligibility in the primaries is a political party concern only. It becomes a state and possibly a Congressional concern (Ref.14th amendment, Section 3) for the general election. The membership of any party should also have this concern during the primaries. It is not an issue for anyone outside of the respective parties. It is not an issue of judicial concern. How does anyone get standing to challenge a result not yet achieved? What concern is it for anyone not a member of a given party? The political party can allow or reject anyone they want. Determination of a nominee is performed by their rules.
From a legal standpoint a political party is a private entity. A business or corporation. It has the same rights as any business. Which are treated as a person. Subject to Equal Protect and Due Process. The political party is NOT a citizen. It cannot vote. A political party is not entitled to representation. It has NO Privileges and Immunities. The membership of everyone in a party is generally treated like stockholders. They get to vote and influence the direction, polices, and leadership of the corporation. In this case the political party.
Originally political parties held caucuses. The process very much like a shareholder meeting. Each party decided when to hold them. The members who decided to attend the caucus voted on candidates, submitted ideas for the party’s political plank. Elected representatives to the county convention. Much of this still happens on the day of the primaries. However, the adoption of a primary system which is the assumption of state influence over all political parties of a state has created the perception that this is a public process. Not a private party process. It is a corrupting influence on political parties. Some states have generalized this process allowing anyone who has not declared their association with a particular party to participate in this process even when they are not members of any party. Allowing non-party members to vote for candidates not of their party or declared political alignment. Would any court assume a sense of authority to decide on the eligibility of a candidate for any office if it was a caucus system? Can government allow those not holding stock in a company the right to vote on company policy or decisions? How can they then enforce these kind of rules political parties which are private entities?
The primary system replacing the caucus system has Constitutional concerns. Political parties are not considerations under the Constitution. Like any business. Political parties are acts of liberty of the citizen (Ref. 1st Amendment – Peaceable Assembly). Is it constitutional for any state to assume influence over this liberty of the citizen? A regulatory framework is proper providing it ensures standards equally applied to the citizen and general election. The political party has its own internal rules of behavior and process. Can a state violate the entire concept of a private organization because it is political through the simple assumption of a primary system?
Do courts have the authority to intervene on challenges of what might happen? Again. How does one get standing to challenge something that has not yet come to pass? This is an unaddressed aspect of the decision made in Colorado. They took a candidate off of the primary ballot before a single vote was cast. For an accusation that has no legal standing. On a process not covered under the Constitution of the United States. The primary or caucus election process could best be view as an unenumerated right (Ref. 9th Amendment). Thus making it a prohibition on government to interfere.
Party Politics over the Constitution in Every Reaction
Reaction to the Colorado Supreme Court decision has been swift and passionate on both sides of the political aisle. It is an example of the division that exists in the political dialog of the nation. A U.S. Senator has proposed a bill called “The Constitutional Integrity Act”. It would prevent federal money from going to states that invoke the 14th Amendment, Section 3. This is a prime example of the lack of quality of those currently holding public office. They do not know the Constitution or consider it. The name of act itself is sadly laughable.
Article I, Section 4, Clause 1 places all regulatory authority (within Constitutional limits) with the state legislatures. The only Congressional authority allowed is in reference to potential members of the House and Senate. It does not extend to Presidential elections other than rules for electors and the certification process (Ref. Article II, Section 1, Clause 3, 12th Amendment).
The Constitutional Integrity Act is also a violation of the 10th Amendment and stands in violation of the Supreme Court ruling in McPherson v. Blacker – 1892. The proposed act abrogates the Congressional authority granted if not obligated by the 14th Amendment in Section 3 and by Section 5 and exclusively transfers that authority to the Supreme Court. No branch of government may abrogate or extend its Constitution functions or obligations to another branch. This suggested abdication of congressional authority is unconstitutional.
Article I, Section 4, Clause 1:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators.”
https://constitution.congress.gov/browse/article-1/section-4/clause-1/
10th Amendment:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
https://constitution.congress.gov/constitution/amendment-10/
The Constitutional Integrity Act calls attention to the use of federal power to influence state elections. Why is the federal government sending money to the states for obligations assigned and required of the states? Power and obligation reserved to the respective states by the Constitution? With money comes influence. Congress is using federal dollars to influence if not control the sovereignty of the respective states. The fact that the proposed act would deny moneys (a state should not be receiving) is the indicator of that influence. It highlights an abuse of power by the federal government on state government. It is an influence that should not exist or be in use. This whole thing is blatantly unconstitutional. Note: At first blush The Constitutional Integrity Act sounds politically like a great idea in certain quarters. It isn’t.
The Spirit of the Party
George Washington in his farewell address warned of the dangers of political parties. Have his words and warning proven prophetic?
“Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally. This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy."
"The common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it."
"It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection."
"There is an opinion that parties in free countries are useful checks upon the administration of the government and serve to keep alive the spirit of liberty. This within certain limits is probably true; and in governments of a monarchical cast, patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume."
https://www.senate.gov/artandhistory/history/resources/pdf/Washingtons_Farewell_Address.pdf
The single event starting with the Colorado Supreme Court decision highlights corruption of the election process, the dominance of politics over the Constitution, the ignorance and lack of ethics of our public officials. It is an indicator of how uninformed the public is to the Constitution and its principles. There is no candidate in the upcoming primary or general election that has been charged or determined guilty of anything related to Section 3 of the 14th Amendment. There is no state related authority in the 14th Amendment to invoke any condition related to insurrection, rebellion, or treason. The 14th Amendment is all Congressional authority.
Primaries are party elections which have no legal constitutional office requirements. Each political party can determine what is permissible and what isn’t. Only the General Election has requirements to hold any particular public office. An unqualified nominee from any political party cannot be on the general election ballot regardless of their nomination. The only possible involvement of the judicial system in a party’s behavior could be in challenges related to the disenfranchising of its party members or the criminal acts of the party itself.
A constitutionally educated populace would not tolerate this level of corruption or incompetence. The problems with the election process are deeper than drop boxes, voting machines, and paper ballots.
Top notch!