Trump’s odds of winning the nomination are sufficiently high that the Court should settle this in advance of the voting.
The decision of the Colorado supreme court disqualifying Donald Trump from the primary ballot has been followed by the Maine secretary of state doing the same following an administrative hearing. This deepens the divisions among the states: for now, at least, the California secretary of state and the Michigan Supreme Court have joined the Minnesota supreme court in declining to remove Trump from the ballot. Notably, however, both the Minnesota and Michigan courts ruled under state law that the issue was premature in advance of a primary, so both kept their options open to let Republicans nominate Trump and then disqualify him later, effectively handing Joe Biden the presidency. None of the final state rulings has yet come to a conclusion that directly conflicts with those of Colorado and Maine in interpreting federal law.
(Interesting side note: Colorado and Maine are both states Trump lost in the primaries in 2016.)
Nonetheless, the case for the Supreme Court to step in, and quickly, is mounting. Trump’s odds of winning the nomination are sufficiently high that the Court should settle in advance of the voting — ideally, in advance of all the primary voting, which begins on January 15 — whether or not he is ineligible for office, or at a minimum, what process would be required before declaring him ineligible. Leaving aside the particular state-law issues of when a candidate can be thrown off the ballot and at whose insistence — which can be expected to vary from one state to another — there are four primary sets of federal-law questions at issue:
- Process. Is Section 3 of the 14th Amendment self-executing, such that state courts and state elections officials are permitted to apply it? (If they can do so, they must do so, under the Supremacy Clause; compliance with federal law is not optional.) Or does Congress need to pass a statute creating a process? If it is normally self-executing, has Congress precluded it from being applied by state entities, under its authority under Section 5 to provide enforcement mechanisms for the 14th Amendment’s terms? Is there some due process right to have disqualification decided only after a criminal conviction, or at least after a specified type of civil process?
- Coverage. Is the presidency an “office…under the United States” covered by Section 3’s disqualification clause? Is his oath of office not one of the oaths covered in Section 3?
- Merits. Does the January 6 riot, or some other conceptualization of Trump’s post-election challenge, amount to an “insurrection”? Did Trump “engage” in that insurrection? Or did he in some way aid and comfort enemies of the United States?
- Preemption. Does it violate the First Amendment’s speech guarantees to disqualify Trump based on his political speech? Does it violate the freedom of association of the Republican Party to bar it from nominating for office a candidate who is legally disqualified from holding the office? (Missouri Democrats, for example, succeeded in electing Mel Carnahan to the Senate in 2000 even though he was disqualified from holding the office on the ground of being dead by Election Day.)
Maine secretary of state Shenna Bellows, in her opinion, joined Colorado in ruling against Trump on all four sets of issues. (As is customary in Trump cases, she chided the Trump lawyers for failing to properly present some arguments on his behalf.) He only needs to win on one. Her reasoning on the merits was, if anything, even weaker than that of the Colorado court, as she based her theory of engaging in insurrection entirely upon verbal incitement before the fact: “Mr. Trump was aware of the tinder laid by his multi-month effort to delegitimize a democratic election, and then chose to light a match…because I conclude that Mr. Trump intended to incite imminent lawless action, his speech is unprotected by the First Amendment.”
As I’ve explained previously, there are two distinct problems with this. One is that Section 3 itself — which is the governing standard, not the First Amendment — was understood at the time of its adoption to require active participation after the commencement of insurrection, not just incitement before the fact.
The other is that, even applying the First Amendment, Bellows is attempting to evade the Supreme Court’s Brandenburg v. Ohio test under the First Amendment — and to do so in the same way that Jack Smith is doing. The Court in Brandenburg held that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Emphasis added). It noted that prior decisions had struck down a federal statute that “allowed conviction for mere advocacy, unrelated to its tendency to produce forcible action.” Brandenburg is an objective test: It’s about what the speech said and what are its likely consequences. It’s not a test of what the speaker subjectively intended in his heart, but instead, focuses on the hard, verifiable facts of what he said. As I wrote of Smith’s indictment and its effort to hold Trump criminally liable for the January 6 riot on account of his speech:
If accepted, this argument would blow a hole in Brandenburg so big any prosecutor could drive a tanker truck through it. The Klansman defendant who gave an incendiary speech in Brandenburg must have wanted violence, right? Surely, a jury could be persuaded to say so. A different jury could be persuaded that Bernie Sanders wanted James Hodgkinson to shoot Republicans on a baseball field, or that the Southern Poverty Law Center wanted Floyd Corkins to shoot up the Family Research Council. It’s always easy to convince yourself that the other guy, in his heart, is a Robespierre or a Himmler. Brandenburg is supposed to draw a bright line in the law against that temptation in order to protect a vibrant enough free-speech climate that it protects even Nazis, communists, Klansmen, tiki-torch carriers, and all manner of other bottom-feeders up to the point at which they actually incite imminent, lawless action. This is precisely why traditional criminal law has always required proof of both a criminal act and criminal intent — actus reus and mens rea, in the Latin argot of lawyers.
That said, I believe that both the Colorado and Maine decisions are right on all the issues except the merits question (see here and here) of whether Trump engaged in insurrection. For example, on the question of whether state officials are bound to act on disqualifications under Section 3, the North Carolina Supreme Court in Worthy v Barrett (1869) held that county commissioners could disqualify an elected sheriff, simply because they had the power to administer his oath:
It is insisted for the petitioner, that the County Commissioners for Moore county have no power to enquire as to his qualifications; that their duty is to administer to him the oath prescribed by law and to receive his bond; that their duty is merely ministerial, and involves the exercise of no discretion, and that the Court will enforce its performance by mandamus, and leave the petitioner’s right to hold the office to be tested by proceedings under a [judicial writ of] quo warranto. The solemn act of administering an oath and inducting into office, may not be merely ministerial. But if it were, the Court will not compel them to do wrong, if it be clear that they did right. [Emphasis added]
However, if it is true that state courts and bureaucrats can disqualify candidates for national office from the ballot on the basis of federal law, it becomes all the more urgent for the one institution charged with uniform application of federal law — the Supreme Court — to step in and provide uniform guidance.
Trump has not yet asked the Court to step in, despite the fact that Colorado’s order is stayed only until January 4 in light of the state-law deadline of January 5 to determine who will be on the ballot. But on Wednesday, the Colorado Republican Party filed a petition for certiorari, represented by Jay Sekulow. Given that the exclusion of Trump directly affects a party primary, the party likely has standing to appeal the ruling in federal court. Notably, however, the Colorado petition does not appeal the merits ruling that January 6 was an insurrection, and that Trump engaged in insurrection. Instead, it raises the following questions:
The Supreme Court of Colorado held that states possess authority, regardless of the lack of congressional authorization, to determine that a presidential candidate is disqualified under Section Three of the Fourteenth Amendment and that former President Donald J. Trump is disqualified as an insurrectionist.
The Questions Presented are:
1. Whether the President falls within the list of officials subject to the disqualification provision of Section Three of the Fourteenth Amendment?
2. Whether Section Three of the Fourteenth Amendment is self-executing to the extent of allowing states to remove candidates from the ballot in the absence of any Congressional action authorizing such process?
3. Whether the denial to a political party of its ability to choose the candidate of its choice in a presidential primary and general election violates that party’s First Amendment Right of Association?
The Court can, in granting cert, decide to hear as narrow a question as it wants, or it can grant cert on the whole case, including anything necessary to the decision below. So, it could decide to issue an opinion on whether Trump engaged in insurrection, or at least laying out clear standards to be applied by courts considering that question. Given the nature of this dispute, it ought to cover as much ground as possible in order to limit further constitutional crises during this election cycle.
Both the Colorado GOP and the voters who filed the challenge to Trump have asked the Court to rule quickly, albeit not quickly enough to either meet the January 5 deadline (which could, arguably, be extended by order of the Supreme Court if it chose) or to produce a resolution before the Iowa caucus on January 15. As Amy Howe at SCOTUSBlog summarized the state of play:
In a motion filed simultaneously with his petition for review, Sekulow asked the court to decide the case by March 5, 2024 – Super Tuesday, when 16 states and one territory will hold their primary elections – or, at the latest, by the end of the court’s current term.
On Thursday the voters who filed the Colorado lawsuit urged the justices to act on the party’s appeal even more quickly. Telling the justices that “voting in Colorado happens mostly by mail and will begin for in-state residents once the ballots are mailed out on February 12,” the voters asked the justices to decide the case by Feb. 11, “so that voters in Colorado and elsewhere will know whether Trump is disqualified before they cast their ballots.” To ensure that the dispute is resolved quickly, the voters also encouraged the justices to set a deadline for Trump himself to seek review of the Colorado Supreme Court’s decision.
Even a February 11 decision would be too late to affect whether Trump’s name is printed on the ballot, but it seems unlikely that the Court will, of its own accord, push the case on a faster track than that when Trump hasn’t even appeared in the case yet.