What If Kamala Harris Is Ineligible To Be (Vice-) President?
by Dar ul Harb, Esq.
(Originally published on Gab
https://gab.com/darulharb/posts/104685863445980097 )
The U.S. Constitution in Article II sets out only three requirements for eligibility to serve as President: that the candidate be over age 35, at least 14 years resident in the United States, and a "natural born citizen." The "natural born citizen" requirement is in the news again because apparently neither of presumptive Democratic Vice-Presidential nominee Kamala Harris' parents were American citizens when she was born. (Given that she was born in the United States, however, she's got birthright citizenship.)
But how would the "natural born citizen" requirement be enforced, anyway? How do you keep an ineligible candidate from becoming President or Vice-President?
It seems the answer is Congress-- through the ballot counting process provided for in the 12th Amendment. The Congress should not legally certify the results of the election if a candidate were ineligible.
§3 U.S.C. 17, and this helpful report from the Congressional Research Service seems to provide some insight...
https://crsreports.congress.gov/product/pdf/RL/RL32717/12
The way it works is, the Congress meets in joint session for the counting of the electoral votes, and if there are objections to the counting of certain votes, a written motion, which must be signed by a Representative and a Senator, can be made to suspend the joint session, at which time the House and the Senate go into separate sessions to debate and vote on the objection(s). §3 U.S.C 17 governs rules for the separate sessions.
Both chambers have to vote in favor of the objection for it to have effect on the electoral vote count (passage is presumably by a simple majority). So, it would seem to be really difficult to invalidate electoral college votes. If there were an issue, like constitutional ineligibility of a candidate, which would invalidate all their electoral votes, it'd be a real mess.
Perhaps the states' election laws would be a better place to enforce the constitutional requirements? That way you could prevent the election of an ineligible candidate on the front end. But that would seem to require litigating the issue of constitutional eligibility of a candidate in every state... 🤔
Otherwise, if some states kept an ineligible candidate off the ballot and some didn't, it would throw everything back to Congress to object to those electoral votes.
As the body certifying the election, Congress is ultimately the backstop for eligibility.
Doesn't the SCOTUS have a role, however, in figuring out what is meant constitutionally by "natural born citizen," for example? SCOTUS has entertained cases before having to do with presidential election procedure, notably in Bush v. Gore. There's somewhat of a distinction, though, between SCOTUS stopping the Florida recount in Bush v. Gore, which had to do with ballots already cast, versus SCOTUS effectively declaring a particular candidate constitutionally ineligible, thus deciding the election directly.
The Congress, in the case of a tie, can choose who it wants to be President (or Vice President) from among the top vote getters. It also has the power to rule on objections to the Electoral College votes. It should thus also have the power to determine what "natural born citizen" means, and whether a candidate is constitutionally eligible.
People are so used to having the Supreme Court rule on the meaning of the Constitution's text that it seems weird that Congress has the power to do so also. But it does... and I would say particularly so in this political context.
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