On January 5, 2024, the Supreme Court of the United States granted certiorari in Trump v. Anderson to review the Colorado Supreme Court’s decision that barred former President Trump from the 2024 primary election ballot in Colorado pursuant to Section 3 of the Fourteenth Amendment to the United States Constitution. The Court ordered former President Trump and any amicus curiae in support of his position or in support of neither party to file their briefs by January 18, 2024. The Court ordered Norma Anderson, the plaintiff who is seeking to keep former President Trump off the ballot, and any amicus curiae support of her position, to file their briefs by January 31, 2024. The Court has scheduled oral argument for February 8, 2024. This is an incredibly fast schedule. But, it is not unusual in pre-election ballot challenges.

In 2016 and 2018, I represented candidates who were challenging the eligibility of other candidates who had filed for election in Maryland state races. In both cases, we went from the initial Circuit Court case filing through full briefing and argument in the Court of Appeals of Maryland (since renamed the Supreme Court of Maryland) in approximately 30 days. In both of my cases, the Court of Appeals held that the challenges were too late.

The 2024 Primary Election for Democratic and Republican candidates in Maryland will be held on May 14, 2024. On Monday, January 22, 2024, the Secretary of State of Maryland certified to the State Board of Elections the names of the candidates for nomination by the principal political parties. The Democratic candidates certified are: Joe Biden, Dean Phillips, and Marianne Williamson. The Republican candidates certified are: Nikki Haley and Donald Trump. Although there have been challenges to Donald Trump’s candidacy in several states, no challenge is pending in Maryland as of now. Lawfare tracks Section 3 litigation involving former President Trump. https://www.lawfaremedia.org/current-projects/the-trump-trials/section-3-litigation-tracker

As a practical matter, all of the pending challenges are on hold pending the Supreme Court’s decision in Trump v. Anderson. However, the potential for challenges to candidates for other offices still exists.

The first practical problem with respect to challenging candidates for other offices in Maryland is that the candidacy filing deadline is not until 9:00 p.m. on Friday, February 9, 2024. Thus, it is possible that an objectionable candidate will not be known until then. Pursuant to the Maryland Election Code, February 20, 2024, is the last day to remove a candidate’s name from the ballot due to the candidate’s death or disqualification. February 26, 2024, is the deadline for a registered voter to file a Circuit Court petition challenging the residency of a candidate. March 6, 2024, is the deadline to seek judicial review of a U.S. presidential candidacy petition verification. March 13, 2024, is the deadline to seek judicial review of the content and arrangement of the election ballot or to correct any printing errors.

All of these deadlines may seem arbitrary and arguably should have some flexibility for unforeseen events that occur between the statutory deadlines and the election, such as the death of a candidate, which occurred in 2018 when Baltimore County Executive Kevin Kamenetz, then a candidate for Governor of Maryland in the June 26, 2018 Primary Election, died suddenly on May 10, 2018. However, there are significant practical problems with changing an election ballot as an election approaches. Pursuant to the federal Uniformed and Overseas Citizens Absentee Voting Act, mail in ballots must be sent to military members and United States citizens residing outside of the country who request ballots at least 45 days prior to the election. There are only a few printers who produce secure election ballots and there are literally hundreds of different ballot forms for Maryland elections. In one of my cases, administrators from the State Board of Elections testified about the impossibility of changing ballots in a short period of time.

No one knows how the Supreme Court will decide Trump v. Anderson. The case raises an issue of first impression and legal scholars of all political stripes differ on what the correct decision should be. But, I expect a quick decision given the very practical issues that any disqualification would cause for election administrators throughout the country. Insofar as other races are concerned, any challengers should be ready to run to court post-haste.