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Trump cannot legally qualify for Nevada’s 2024 primary ballot

The Supreme Court may consider if states can disqualify Trump from their primaries. No matter how justices rule, it will not alter the Silver State’s election.
David Colborne
David Colborne

When Nevada’s Republican voters receive their sample ballots for the state’s presidential preference primary this month, the name of the party’s current frontrunner will be missing.

His absence has nothing to do with any legal challenges to former president Donald Trump’s eligibility to participate in the state’s primary. Nevada’s Supreme Court, unlike Colorado’s, was never given the opportunity to rule on whether Trump’s behavior during and immediately following the 2020 election violated Section 3 of the 14th Amendment, which forbids those who commit insurrection from being eligible for elected office. Similarly, Secretary of State Cisco Aguilar, a Democrat, didn’t have the opportunity his colleague in Maine had to weigh in on the question himself.

No, Trump is ineligible for Nevada’s primary ballot because Trump’s campaign didn’t fill out an application to place him on Nevada’s primary ballot.

As hilarious as it would have been if this was the product of a paperwork snafu committed by an incompetently run campaign, Trump’s absence from Nevada’s primary ballot was wholly intentional. They merely followed the directions provided to them by a truly incompetently run organization — the Nevada GOP, which decided the same primary election process that’s been used to select every other non-presidential Republican candidate, including our current governor, in the state for decades is still not good enough for presidential candidates in 2024. In case anyone didn’t get the memo, the state party warned presidential campaigns that if it saw their candidates’ names on the primary ballot, those candidates would be ineligible to participate in and receive delegates from the caucus.

Bear in mind this decision was made after the Nevada GOP canceled its 2020 caucus and Democrats in 2020 hosted a caucus that, and I quote this very publication, “mostly worked.” It “mostly worked” so resoundingly well that Democrats pushed for — and passed — legislation to abandon caucuses and switch to a presidential primary system the first chance they got.

As tempting as it might be to opine on whether Trump remains constitutionally eligible to be elected to federal office, that matter is presently academic in Nevada. That’s a shame, too, given the recent indictment of a number of officers of the Nevada GOP for attempting to submit fraudulent electoral votes on his behalf (if they’re in court, who’s organizing and running the caucus?).

Much more pressingly, the various lawsuits challenging Trump’s primary ballot eligibility, along with his absence from Nevada’s, are highlighting how Mickey M — sorry, Disney lawyers, I mean Steamboat Willie — the presidential selection process is in this country.

Most elections in this country are fairly straightforward. Whether candidates are  running to be a senator or a member of the local school board, if they receives more votes cast from those they seek to represent than their opponents receive, they win their election. Any school-aged child who’s voted in a student council election understands the basics.

Presidential elections, however, have always been considerably more convoluted.

Constitutionally, voters don’t elect presidents, electors do. How electors are chosen was left to state legislatures to sort out. At first, many legislatures simply appointed electors without any care or consideration for who the voting public at large might prefer to elect as president. Though most states eventually deigned to permit voters to select electors by 1832, it wasn’t until 1864 — the year Nevada gained statehood — that electors in every state were selected by the voters. Section 2 of the 14th Amendment, which was ratified in 1868, now requires states to allow voters to select presidential electors.

Letting voters select electors by casting votes with the names of presidential candidates on them is not the same thing as directly voting for a presidential candidate, however. Most states, except Maine and Nebraska, apportion electors according to a winner-take-all system, in which the presidential candidate who receives the most votes is pledged all of the electoral votes from that state. Consequently, when Hillary Clinton beat Trump by 2 percent in 2016, she received all six of Nevada’s electoral votes despite receiving less than 48 percent of the popular vote.

Similarly, pledging electors to a candidate is not the same thing as actually requiring electors to vote for the presidential candidate they pledged to vote for before they were selected. Though Nevada statutorily requires presidential electors to vote for the presidential candidate who received the highest number of votes in the state, many states permit “faithless electors” to vote their conscience instead of voting for the candidate preferred by their state’s voters. In 2016, for example, there were seven faithless electors, of whom five were originally pledged to Hillary Clinton.

Consequently, even if Trump is permanently removed from the presidential ballot in Colorado and Maine, only one electoral vote, Maine’s 2nd Congressional District, will likely be potentially lost to him. 

The reason for that is Trump lost Colorado by over 400,000 votes in 2020, or 13.5 percent of the vote. Maine was a bit closer — Trump lost the state by 9 percent and picked up an electoral vote because Maine pledges electors representing congressional districts to the candidate who receives the most votes in each of the state’s two congressional districts — but it’s nowhere near close enough. The only state to have a 9 percent margin swing between 2016 and 2020 was Vermont, where a write-in campaign for Bernie Sanders peeled off over 5 percent of the vote from Hillary Clinton in 2016.

This demonstrates a curious quirk of the American presidential election system. Thanks to our indirect state-by-state winner-take-all presidential elector system, Trump could be disqualified in California and New York — two states where he received nearly 10 million votes — without any effect on his election chances since both states reliably select Democratic electors by double-digit margins. Similarly, judges or secretaries of state in ruby red Republican strongholds such as Idaho and Utah could return the favor by disqualifying President Joe Biden from their voters’ ballots and it wouldn’t change the result in 2024 one iota.

In fact, since New York has no law governing faithless electors, Trump could be disqualified from New York’s ballots, receive no votes, yet still potentially receive at least one electoral vote from the Empire State.

It doesn’t have to be this way. We could elect presidents following the same one-voter, one-vote principle used in every other election. Unfortunately, there’s some disagreement on how to procedurally get there. 

Since the Constitution defines the current presidential election system, the most proper way to address this would be by amending the Constitution. This, however, would require the support of two-thirds of both houses of Congress, as well as the support of three-fourths of the state legislatures. Given our current political climate, nobody expects two-thirds of both houses of Congress to agree on whether the sun rises in the west or the east, much less on an amendment to the Constitution.

To work around that, the National Popular Vote Interstate Compact was created. States that join the compact pledge to cast their electoral votes for the presidential candidate who receives the most votes, provided enough states participate in the compact to secure a winning majority of the nation’s electoral votes. In 2023, the Legislature considered and passed a measure that, if approved by the 2025 Legislature and subsequently by voters in 2026, would add Nevada and our six electoral votes to the compact.

Like many clever workarounds, there are some open questions surrounding the legality of the compact. Article I, Section 10, for example, prohibits states from entering into any agreement or compact with another state without the consent of Congress, which hasn’t been secured yet. Additionally, each state runs its elections differently — some states, such as Nevada, allow voters to vote from jail while others don’t. Each state also has diverging voter registration and mail ballot requirements, which would affect the vote totals for any nationwide election.

Did I mention that the existing system has its fans? Nevada, being one of the few swing states in the country, gets far more attention from advertisers and media outlets than states where presidential elections are foregone conclusions. An actual nationwide election would treat all votes equally — meaning, presidential candidates would actually have to visit New York City, Chicago and Los Angeles once in a while during an election year instead of shutting down freeways in Reno and Las Vegas every two weeks to pander to our state’s swingy voters.

The damage to our nation’s economy if commuters outside of Nevada have to share our pain could become incalculable.

Even so, regardless of whether the letter of the law proposed under the National Popular Vote Interstate Compact actually passes muster or not, the spirit is clearly in the right place. Presidential elections affect all Americans and should consequently be equitably decided by all Americans. Our current system, in which presidential candidates can selectively skip state primaries and it’s meaningless in most states whether there’s more than one presidential candidate on the ballot or not, is clearly and demonstrably obsolete.

We can do better. This month, Republican primary ballots demonstrate we must.

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a weekly opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky, on Threads @davidcolbornenv or email him at [email protected].


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