Ineligibility: a safeguard, or a suppression tool? This article explores why some people are banned from running for office, and who gets to make that crucial decision.
While "Eligibility for Public Office" and "Electoral Ineligibility" outline basic qualifications and categorical disqualifications for elected office, the concept of Qualified Electoral Ineligibility delves into a far more complex and contentious area: when should a candidate be barred from running or holding office due to their past actions or "bad behavior," even if they meet the standard eligibility requirements? This form of ineligibility goes beyond objective criteria like age or criminal convictions and focuses on assessing a candidate's character, ethical conduct, and demonstrated commitment to democratic values. This article explores the definition of "qualified" ineligibility, examines the criteria used to assess "bad behavior," discusses the importance of safeguards against abuse, and analyzes the impact on democratic processes.
"Qualified" electoral ineligibility refers to the discretionary power to disqualify a candidate based on a subjective assessment of their past conduct. Unlike clear-cut cases of ineligibility (such as being underage or having a felony conviction), "qualified" ineligibility involves evaluating a candidate's actions and determining whether they demonstrate a fundamental lack of fitness for public office. This often involves balancing competing interests and values, such as the right to run for office, the need to protect democratic institutions, and the importance of ethical governance.
Determining what constitutes "bad behavior" that warrants disqualification is inherently subjective and fraught with challenges. However, several ethical and legal standards are often considered:
• Corruption: Examples of corrupt acts that could lead to disqualification include bribery, embezzlement, extortion, and misuse of public funds.
• Abuse of Power: Examples of abusing public office for personal gain include using government resources for political campaigns, granting favors to political allies, and obstructing justice.
• Inciting Violence: Inciting violence or promoting hatred against certain groups undermines the fabric of society and should be considered a disqualifying factor.
• Ethical Violations: Examples of serious ethical breaches include conflicts of interest, violations of confidentiality, and failure to uphold professional standards.
• Subversion of Democracy: Actions aimed at undermining democratic processes, such as spreading disinformation to manipulate elections or attempting to overthrow a legitimate government.
• Treason: Betraying one's country through acts of espionage, sabotage, or aiding enemies of the state.
• Human Rights Abuses: Involvement in serious human rights abuses, such as torture, extrajudicial killings, or genocide.
The assessment of 'bad behavior' can be further complicated by the presence of what is often referred to as "Tweed Syndrome" – a situation where corruption becomes so deeply ingrained in a political system that it is normalized and accepted, making it difficult to identify and punish. When Tweed Syndrome prevails, previously disqualifying behaviors may be overlooked or excused, further eroding public trust and undermining the integrity of democratic institutions. Therefore, recognizing and actively combating Tweed Syndrome is crucial when evaluating whether a candidate's past actions warrant disqualification.
It's important to note that not all instances of "bad behavior" will warrant disqualification. The severity of the conduct, its impact on the public interest, and the candidate's intent should all be considered.
The discretionary nature of "qualified" ineligibility makes it vulnerable to abuse. To mitigate this risk, several safeguards must be in place:
• Clear and Transparent Criteria: The criteria for disqualification should be clearly defined and publicly available, minimizing the potential for arbitrary or discriminatory application.
• Independent Investigation: Allegations of "bad behavior" should be investigated by an independent and impartial body, free from political influence.
• Due Process: Candidates must have the right to a fair hearing, legal representation, and the opportunity to present evidence on their behalf.
• Burden of Proof: The burden of proof should rest on those seeking to disqualify the can didate, and the evidence must be clear and convincing.
• Proportionality: The disqualification should be proportionate to the severity of the offense and the degree of risk posed to the public interest.
• Judicial Review: The decision to disqualify a candidate should be subject to judicial review, allowing an independent court to ensure that the decision was fair and consistent with the law.
• Ethics Commissions and Oversight Bodies: Independent ethics commissions can play a crucial role in investigating allegations of misconduct and making recommendations regarding a candidate's eligibility.
Examining real-world examples can help illustrate the challenges and complexities of "qualified" ineligibility:
• Example 1: A candidate with a history of making racist or sexist statements. Should this candidate be disqualified based on their past statements, even if they meet the other eligibility requirements?
• Example 2: A candidate who has been accused of corruption but never formally charged or convicted. Should this candidate be disqualified based on the allegations alone, or is further investigation required?
• Example 3: A candidate who actively participated in a violent insurrection against the government. Should this candidate be disqualified from holding public office in the future, even if they were not convicted of a crime?
These examples highlight the difficult choices that must be made when considering "qualified" ineligibility. There are no easy answers, and each case must be evaluated on its own merits, taking into account the specific facts, the relevant legal standards, and the broader public interest.
As emphasized in previous articles, the very mechanisms designed to protect democracy can be perverted and weaponized by authoritarian regimes. History is replete with examples of autocrats using the pretext of "corruption," "national security," or "state interest" to deceptively disqualify opposition leaders and political rivals from participating in elections.
We must remain eternally vigilant against this abuse by demanding concrete evidence, ensuring due process, protecting minority rights, encouraging international monitoring, and investigating patterns of abuse.
"Qualified" electoral ineligibility has a significant impact on democratic processes, both positive and negative:
• Promoting Ethical Governance: Disqualifying candidates with a history of corruption or abuse of power can help to promote ethical governance and restore public trust in government.
• Protecting Democratic Institutions: Disqualifying candidates who seek to undermine democratic processes can help to safeguard the foundations of democracy.
• Upholding Rule of Law: Disqualifying candidates who have violated the law can help to uphold the rule of law and ensure that no one is above the law.
• Limiting Voter Choice: Disqualifying candidates can limit voter choice and reduce the diversity of candidates available.
• Suppressing Dissent: "Qualified" ineligibility can be used to silence political opponents and suppress dissent, particularly in authoritarian regimes.
• Undermining Legitimacy: Controversial disqualifications can undermine the legitimacy of elections and fuel political instability.
"Qualified" electoral ineligibility is a powerful tool that can be used to protect democracy and promote ethical governance. However, it is also a tool that can be abused to silence political opponents and undermine the democratic process. To use this tool responsibly and effectively, it is essential to establish clear and transparent criteria, implement robust safeguards against abuse, and balance the need to protect democratic institutions with the need to protect individual rights. By navigating this tightrope carefully, we can ensure that "qualified" electoral ineligibility is used to strengthen, rather than undermine, our democracies.
Between 22–30 June Brazil 's Superior Electoral Court (TSE) tried a lawsuit to determine the annulment of the Bolsonaro-Braga Netto ticket, accused of abuse of political power and misuse of the media, following a meeting with foreign ambassadors on 18 July 2022, broadcast on TV Brasil, brazilian state television broadcaster, in which then-president Jair Bolsonaro attacked the brazilian electoral system. The lawsuit was filed by the Democratic Labor Party (PDT) on 19 August 2022. Bolsonaro was declared ineligible until 2030 by 5 votes to 2 on June 30. On 31 October 2023, former vice-presidential candidate Walter Braga Netto also became ineligible, for abuse of political and economic power in the celebrations of the Bicentenary of Independence.
Trump v. Anderson, 601 U.S. 100 (2024), is a U.S. Supreme Court case in which the Court unanimously held that states could not determine eligibility for federal office, including the presidency, under Section 3 of the Fourteenth Amendment. In December 2023, the Colorado Supreme Court rejected former president Donald Trump's presidential eligibility on the basis of his actions during the January 6 Capitol attack, adhering to the Fourteenth Amendment disqualification theory. The case was known as Anderson v. Griswold in the Colorado state courts.