More on Criminal Conviction and Section 3 Disqualification [Updated]

My response to conservative political commentator Conn Carroll's argument on this issue.

Donald Trump. (Rod Lamkey/CNP/Mega/RSSIL/Newscom)

 

Earlier this week, I put up a post explaining why a criminal conviction for insurrection isn't required for Donald Trump to be disqualified from running for president under Section 3 of the 14th Amendment. Conservative political commentator Conn Carroll has responded to me in a column published by the Washington Examiner.

I remain unpersuaded. Carroll is confused about jurisdictional issues. And even if he were right about them, it still would not prove that a criminal conviction is necessary.

Carroll's main point is that Colorado courts lacked jurisdiction to consider the Section 3 issue:

George Mason University law professor Ilya Somin argues that a criminal conviction for insurrection is not necessary for invocation of Section 3 of the Fourteenth Amendment because our legal system has long recognized that the same events can give rise to both civil and criminal liability.

He cites the example of O. J. Simpson, who was famously acquitted in criminal court for the murder of Nicole Brown Simpson and Ron Goldman but was later held liable in civil court for their deaths, resulting in $33.5 million in damages….

Somin forgets entirely about jurisdiction. Both criminal charges and civil claims must be brought in a court that has jurisdiction over the act in question. This is why Simpson was tried for murder by a California court and not a court in Arizona. Similarly, civil claims must also have a nexus to the court where they are brought. This is why the civil case against Simpson was brought in California court, not Texas. A Texas court would have no jurisdiction to hear a civil claim stemming from a murder in California….

Here in the Trump case, none of the events of Jan. 6 have any nexus with Colorado. The events happened entirely in Washington, DC. Why should a Colorado court be the one to decide if what Trump did was insurrection?

Carroll forgets that Colorado courts unquestionably do have jurisdiction over the issue of whether a candidate is eligible to appear on the ballot in Colorado elections (in this case, the Colorado Republican primary, in which Trump is a candidate, and which is administered by the state government).  As the Colorado Supreme Court explained in its ruling, state law requires candidates on the ballot to be legally eligible to hold the office they are running for. And state courts can consider any potential legal grounds for ineligibility—including Section 3 of the Fourteenth Amendment.

In hearing cases, state courts routinely consider relevant events that occurred outside the state. If I am charged with committing murder in Colorado, the state can introduce a recording of me plotting the murder while located in another state. This applies to issues of candidate eligibility, as well. For example, in 2016, state courts considered claims by Trump supporters that Ted Cruz, one of Trump's rivals for that year's GOP nomination, was ineligible for the presidency because he was not a "natural born" citizen (Cruz was born to US-citizen parents while they were living in Canada). It made no difference the relevant event (Cruz's birth in Canada), occurred outside of the states whose courts heard the cases.

Ultimately, courts in New Jersey and Pennsylvania concluded Cruz was eligible, and ruled against the Trump supporters. But no one doubted the courts had jurisdiction to hear their claims.

Even if Colorado courts did lack jurisdiction, it doesn't prove that a criminal conviction was necessary. It would just mean the issue would have to be settled by some other set of courts or officials (perhaps federal courts).

Carroll also has a second objection:

Somin's criminal-civil distinction also fails because, under the Colorado Supreme Court's own reasoning, a civil verdict isn't necessary at all. Any secretary of state in any jurisdiction could simply declare someone they didn't like was an "insurrectionist" and kick them off the ballot.

None of the Confederates denied office after the Civil War had a civil trial to determine if they were insurrectionists. One was denied office under Section 3 by a governor. Another by a county commissioner. Another by the Postmaster General.

Accepting the Colorado Supreme Court's ruling would unleash chaos. Any Republican secretary of state throughout the country could disqualify anyone from office for supporting the Black Lives Matter riots. Is this really what the authors of the 14th Amendment intended?

As I pointed out in my earlier post, none of the ex-Confederates disqualified in the aftermath of the Civil War were convicted of any criminal offenses related to their participation in the Civil War. This reinforces the point that a criminal conviction isn't required under the original meaning. Some of them did, however, have their disqualifications reviewed by state courts (which upheld them).

Whether state officials can disqualify candidates without going to court first depends on state law. Different states have different rules. It is not unusual for nonjudicial officials to make initial determinations on civil law issues.  Police officers do that all the time when it comes to traffic violations, for example; ditto for state and federal tax collection agencies assessing penalties for tax law violations.

But even those states where executive officials can initially act on their own still allow candidates to challenge disqualification decisions in court. As I have pointed out before, this is an important constraint on skullduggery by partisan officials. And even if such misbehavior is more of a risk than I think, it doesn't follow that a criminal conviction is a constitutional prerequisite to disqualification. It would just mean that state governments should pass legislation limiting officials' discretion. Congress could potentially do so, as well, using its power to enact "appropriate" enforcement legislation under Section 5 of the Fourteenth Amendment. Unless it does so, however, states can use their legal systems to enforce Section 3, just as they enforce other constitutional eligibility requirements for office.

UPDATE [Jan. 2, 2024]: Conn Carroll has posted a rejoinder here. He now claims he never said Colorado courts lacked jurisdiction over Section 3 challenges to Trump's eligibility, but merely meant to "invoke the reasoning behind jurisdiction to highlight the ridiculousness of state courts and officials around the country all rendering their own verdicts on what is and is not an insurrection and determining who and who has not engaged in insurrection."

I think it is pretty obvious Carroll did make a jurisdictional argument in his original piece. But readers can judge that for themselves. In any event, if Carroll agrees, as he now puts it, that "Yes, of course state courts have jurisdiction to hear claims about who should be on the ballot," then these courts also have jurisdiction to make determinations about relevant legal and factual issues that must be addressed in order to resolve cases about candidate qualifications.

It is true, as Carroll argues, that some of the legal and factual issues about Trump's eligibility are more disputed than other candidate eligibility questions are. But courts resolve disputed factual and legal issues all the time. That's what courts are for! In some cases, state executive officials (like the Maine Secretary of State with respect to Trump) also have authority to make such determinations (subject to later judicial review). If this leads to problematic inconsistency between states, the US Supreme Court could agree to review one of these cases, and make a definitive precedent binding across the nation. But there is nothing inappropriate about state courts and officials addressing legal issues over which—as Carroll now concedes—they have jurisdiction.

It is in fact common for courts in different states (and in some cases federal courts in different parts of the country) to come to divergent conclusions on federal constitutional issues. If the Supreme Court concludes the inconsistency is intolerable, they can and often do step in by reviewing one of the cases raising the issue in question.