For the first time since I went into teaching, I took on a pro bono client and argued for her at a hearing before the Indiana Electoral Commission. I thought I would talk about the issue here, now that the ruling is final–we lost and there will be no appeal.
My client wanted to run for the House of Representatives. She will turn 24 next month. The argument against her eligibility is that Article I of the Constitution provides that a member of the House must be at least 25. Counsel for the challenger took the position that this (and the state statute on ballot eligibility) meant that she had to be 25 by the first day that the next Congress convened (Jan. 3, 2017).
Our position was that the Constitution only bars someone from serving until they reach 25. In other words, my client was eligible to run so long as she would turn 25 sometime during the term to which she was elected. The seat would just be vacant until her birthday.
In support of this claim, I pointed out that the Senate seated Rush Holt of West Virginia (who was elected in 1934) even though Holt did not turn 30 (the minimum age for a Senator) until June 1935. The Senate rejected a challenge to Holt’s eligibility and said only that he could not serve until he turned 30. (When he did, he was sworn in and served out his term). Likewise, the House of Representatives seated John Brown of Kentucky (who was elected in 1858), even though he did not turn 25 until June 1860. (When he did, he was also sworn in and served out his term.) In no instance had the House or the Senate refused to seat an elected person on the theory advanced by the challenger in my case, and there was no case law to support the challenger’s position.
The Commission ruled in favor of the challenge. They do not issue written opinions, so I’ll do my best to parse what they said. I think they thought that our state statute should be read to say that to run you had to be eligible to serve on the first day of the new Congress, and thus the precedents that I cited were not controlling. I am at a loss to explain why they thought that our statute should be read in this way, as there was no authority on that point. I think they just thought my client had no chance of winning so hence it was OK to kick her off the ballot.
Now can a state do what the Commission was suggesting? Maybe. A state could say that it wanted to be fully represented in Congress, and thus might not want to give ballot access to someone who could not start on Day One. Would that requirement violate the Eligibility Clause? (Put another way, do the House and Senate precedents foreclose a state from blocking people such as Brown and Holt from being on the ballot?) I’d want to give that more thought. But Indiana definitely did not do this in its ballot statute, and the challenge should have been rejected. Alas . . .