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This question is inspired by this other question.

Suppose a state determines that a major party candidate should not be on their presidential general election ballot, perhaps because they believe it would be in violation of the 14th Amendment. What should they do instead for that party?

Would they omit the party entirely? This effectively hands their electors to the other major party, since a third party candidate has virtually no chance of being elected, and disenfranchises voters who wanted to vote for this party.

Would they keep the party on the ballot, and name their own candidate in place of the one the party chose?

Or would the ballots simply say something like "Electors for X Party" without a candidate name, since that's technically what you're always voting for. But if that's done, what's the point of leaving the candidate off the ballot? The electors still choose who to vote for in the Electoral College, and the voters know who they'll select in "X Party". Would removal of the candidate also direct the electors not to vote for them?

Since the details of voting are governed at the state level, I imagine there may be a variety of solutions. Have they been codified in state laws, or would we be in unprecedented and unforeseen circumstances should this occur (which is a distinct possibility, as there are now court cases in several states challenging Trump's eligibility)?

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  • Kind of a hypothetical / speculative Q, IMHO, given the lack of precedent. We might find out in a year or so. Nov 7, 2023 at 18:42
  • @Fizz That's what I'm wondering -- is it totally uncharted, or have state legislatures made arrangements for it in their election laws?
    – Barmar
    Nov 7, 2023 at 19:44

2 Answers 2

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Question:

What happens if a state omits a major party candidate from their presidential ballot.

That is exactly what the 14th Amendment section 3 of the US Constitution calls for the states to do.

The only thing people on both sides of this discussion agree upon is it almost certainly means the supreme court would have to weigh in. To have some states excluding a major party's candidate while others did not is unthinkable. The precedent is too dangerous without a supreme court decision making a final uniform decision for the nation.

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    It's not unthinkable. It's exactly what happened to Abraham Lincoln in 1860. Let's just say political stability deteriorated shortly thereafter. Nov 8, 2023 at 14:48
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    @SurpriseDog, 2 thoughts. (1) Wasn't exactly similar, much less exactly the same. The courts and US Constitution were not used to exclude Lincoln from the Ballot in 1860,. Lincoln failed to meet the state's Ballot access requirements due to lack of grass root support and party representation in 10 Southern states. Which still happens today generally to 3rd party candidates. (2)There are a lot of things which occurred in 1860 which are unthinkable today.
    – JMS
    Nov 8, 2023 at 15:17
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    @SupriseDog, I would also add that it was the Kansas entering the Union as a free state, Jan 29, 1861. Which blew apart the pro slave equilibrium in Congress which was the more influential event necessitating the "deterioration" which followed from the vantage of pro-slave states. That's what made slavery politically unsustainable. The Southern voting block no longer had the votes to protect the institution. The country had anti slave president's prior to Lincoln. Lincoln was actually a fairly moderate on the topic compared to the other Republican Candidates in 1860.
    – JMS
    Nov 8, 2023 at 15:49
  • "The only thing people on both sides of this discussion agree upon is it almost certainly means the supreme court would have to weigh in." SCOTUS may weigh in, but it certainly doesn't have to and hasn't weighed in on enforcement of Section 3 of the 14th Amendment for other offices. "To have some states excluding a major party's candidate while others did not is unthinkable." The candidates on the ballot are different on different state ballots in essentially all modern Presidential elections. It is hardly unthinkable. And, if a state excluding Trump was a blue state, it wouldn't even matter.
    – ohwilleke
    Nov 8, 2023 at 16:55
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    @JMS We will hear about the Colorado case soon, but probably not that soon. Closing arguments are on November 15, 2023. Judge Wallace almost certainly won't deliver a ruling from the bench. Everyone knows that this is a big deal case and Judge Wallace will craft a carefully written and polished written opinion, probably sometime between the week after next and Thanksgiving. From there, there is a direct appeal of right to the Colorado Supreme Court, which is almost certain to occur no matter who wins (but Judge Wallace's findings of fact will still bind the Colo. Supreme Court and SCOTUS).
    – ohwilleke
    Nov 8, 2023 at 17:19
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The National Association of Secretaries of State has published a summary of State laws regarding presidential ballot access for the General Election, as of January 2020.

A common statement regarding access is —

A presidential candidate nominated by a political party may be placed on the general election ballot.

Though some add "recognized", "qualified", "major or minor", etc., in reference to "political party".

Given that no changes are made to any states' laws, the name of whoever is nominated will be on the ballot.

Using Colorado as an example —

This is a portion of a sample ballot from Colorado for the 2020 General Election.

Portion of the 2020 General Election ballot for Colorado

[Clear Creek County, CO 2020 Sample Ballot]

The candidates for President and Vice President are paired. To prevent a state-disqualified presidential candidate from appearing while allowing a qualified vice presidential candidate to appear would require a change in the law to allow separate (unpaired) voting. Otherwise, a voter choosing the qualified vice presidential candidate would be denied any choice for the presidential candidate. Furthermore, only the name of the candidate nominated by a political party can be placed on the general election ballot.

Also note that under Colorado law for the general election, it appears that only presidential electors are nominated by political parties and the names of the candidates for president and vice president are simply added to the party certificate of nomination.

C.R.S. Title 1 Elections
Article 4 Elections - access to ballot by candidates

1-4-701. Party nominations to be made by convention.

(1) Any convention of delegates of a political party or any committee authorized by resolution of the convention may nominate candidates ... for presidential electors and also may select delegates to national political conventions.

(2) ...
(d) In the case of presidential electors, the names of the candidates for president and vice president may be added to the name of the political party in the certificate of nomination.

Thus, there appears to be no way to prevent a state-disqualified presidential candidate from appearing on the general election ballot; nor to prevent the presidential electors from choosing that candidate. However, there is the possibility that the governor might refuse to sign the Electoral College vote count for the state-disqualified presidential candidate before transmission to the Archivist for presentation to Congress.

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  • "Given that no changes are made to any states' laws, the name of whoever is nominated will be on the ballot." If the issue were ballot access rather than qualification for the office, that might be true, but when the issue is as it is here, qualification for the office, this is almost certainly an inaccurate statement of the status quo of state law.
    – ohwilleke
    Nov 8, 2023 at 17:03

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