We're In The Section 3 Endgame Now

[This post is co-authored with Seth Barrett Tillman]

On Friday, the Supreme Court granted certiorari in Trump v. Griswold, the Section 3 case from Colorado. On Tuesday, we filed our amicus brief. We have made efforts to think through a fair number of the issues, and we have written about two of the most likely issues that the Court will address and which may resolve the case: (i) that Griffin's Case (1869) provides the rule of decision, that is, Section 3 necessitates federal enforcement legislation; and (ii) that the President is not an "Officer of the United States." The former position is based on a full-length law review article that we shared in August, though we have been developing that position—in particular, the sword-shield dichotomy—since 2021. The latter position has been a subject of our publications for a good many years. Since 2008, Tillman has been writing that the President is not an "Officer of the United States." Circa 2012, shortly after Blackman began teaching, he came round to Tillman's position. 

Suffice to say, we have been giving these issues substantial thought for some time. Others less so. For example, a recent, rushed entry in this debate demonstrates the risks of jumping in too hastily. Indeed, several media accounts that relied on that paper have already had to post corrections. We have little doubt there will be more rushed and flawed entries in the debate. Critics with little or no expertise in the field will find something, anything, to prove that we are wrong. No doubt these critics will be unfamiliar with our full body of scholarship, which well exceeds a thousand pages. Critics will attack positions we never took, and ignore the positions we have actually taken. Critics will be unfamiliar with the proper context of sources from the 18th and 19th centuries. And critics will approach their conclusion with absolute certitude that they are right and Tillman/Blackman are wrong. Trust us, we've seen it all before. We could make a list of people who have said we were wrong, and then later had to retract or more. The list keeps growing.

Over the next two months or so, the United States Supreme Court is likely to provide some resolution to one or more of these contentious issues. And, we expect that more than a few will try to leave a mark on this debate in the near term and prior to judicial resolution. They will post new "research" at the last minute knowing full well that those who are in a position to confirm the accuracy of newly reported "research" will have little or no time to do so before the Supreme Court decides this case. And, for a few, that is not a bug, it is the chief feature. 

If and how we respond will be a function of what time and other constraints we face in this final, pivotal period. Our candid message to you—the reader—is to approach such new, late-breaking entries in the debate with some caution.

We are in the Section 3 endgame now.

Comments

[CindyF]

Here is an interesting plot twist:

"Trump 14th Amendment political challenger arrested on federal tax charges"

https://thehill.com/regulation/court-battles/4400782-trump-14th-amendment-political-challenger-arrested-on-federal-tax-charges/

"A Texas man who filed more than two dozen challenges to former President Trump’s ballot eligibility was arrested Tuesday on charges alleging he filed 17 sets of false tax documents to the IRS.

John Anthony Castro was indicted last week on 33 counts of aiding the preparation of false tax returns. Prosecutors claim he ran a virtual tax preparation business that provided customers with tax returns beyond what they were actually owed, defrauding the government."

[santamonica811]

Cindy,
Where is the plot twist? I'm just not seeing it.

But, in regards to your linked article; here's a pro tip for all active and/or aspiring criminals:
If you wanna get away with your crimes, do NOT do anything that puts you into the public's eye. Your best defense is to not doing anything that gets you noticed. Don't file lawsuits (whether frivolous or meritorious). Don't save small children from a burning building. [Or, at least, give a false name when talking to reporters afterwards.]. Don't go on TV ever ever ever. And so on.

You're welcome, America.

[gVOR08]

Indeed. Someone with a shady past and a tendency to ignore the law probably shouldn’t have run for president.

[Brett Bellmore]

Good advice both the Clintons should have taken.

[ObviouslyNotSpam]

I feel you're making progress. Slowly, but surely...

[Randal]

I don’t understand how Griffin’s Case would prevent Colorado from removing Trump from the ballot. It might change their decision, but they could still decide that even the risk of disqualification by Congress is enough to take him off the ballot, no?

[F.D. Wolf]

To accomplish this ascertainment [if someone is covered by Section 3] and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress.

Griffin's Case, at 30

[Randal]

I get that, but Griffin’s Case was a purely federal context. Yes, it was an effort to disqualify a state judge, but it was a habeas action in federal court. The opinion seems to say that 14/3 was not a blank check for federal courts to start removing state officials from office.

But it doesn’t really say anything about state actions, such as state court decisions. Could Virginia have applied 14/3 against its own state judge? Of course, you can argue that Griffin’s Case should extend to state actions — indeed, it’s what Tillman and Blackman are arguing — but Griffin’s Case itself doesn’t go that far. I can also see problems with extending it to cover state actions… it’s sort of a new form of supremacy / preclusion, which is not something we need another form of. (Like how people have been teasing Kaz for an argument with the logical conclusion of states being unable to collect taxes due to this newly proposed style of preclusion.)

[F.D. Wolf]

Chief Justice Chase could have said “Congress or the state legislature” or the like, but he didn’t. He said “ONLY… Congress”. And it certainly makes logical sense to have a uniformity in due process, as opposed to a different standard in every state. Heck, forget states, why not let every county decide if a candidate can appear on its ballots?

Can a state, without an enabling statute from Congress, take unilateral action to disqualify an individual from office under Section 3? Well, the fact that no state ever did until 2022 at least suggests the answer is no. Is it likely that it simply never occurred to anyone?

In 1873, Lucius QC Lamar, who had been a colonel in the Confederate Army, ran for a House seat in Mississippi. Lamar had previously served in the House from 1857 to 1861, so was clearly covered by Section 3. His Republican opponent warned voters that Lamar might not be able to take his seat if he won the election. Regardless, Lamar won. Lamar travelled to Washington to lobby Congress to vote to remove his disability per the terms of the Section 3. He was successful in securing the necessary 2/3 vote in both chamners of Congress, enabling to take his seat at the opening of the next Congress.

A few days ago, there was an article on the Reason main page about Victor Berger. Beger was a socialist who, in 1919, was convicted under the Espionage Act of 1917. (The verdict was overturned by the Supreme Court in 1920). He won election to the House from Wisconsin in 1918, but the House refused to seat him, claiming he was disqualified under Section 3. The seat was declared vacant, and a special election was held. Berger ran and won again. AGAIN, the House refused to seat him. The seat remained vacant for a year. In the 1920 election, Republican William Stafford defeated Berger. In the 1922 election, Berger defeated Stafford. (The Supreme Court having overturned the previous conviction, the House allowed Berger to take his seat.)

What is missing from the two preceding stories? No state official taking any action to disqualify either Lamar or Berger, and no one going to court to disqualify a candidate. CONGRESS alone made the decision in both cases. Again, is it likely that it simply did not occur to anyone in either case that this was a legal option?

[Randal]

Heck, forget states, why not let every county decide if a candidate can appear on its ballots?

Every county can decide which candidates appear on the ballot (subject to state law) for lots of reasons, just like every county can levy its own taxes.

Does 14/5 stop them? Normally you lot are federalists.

[F.D. Wolf]

I don't think we share the same definition of federalism. Either an individual is disqualified under Section 3, or he isn't. Common sense dictates there should be one voice and one standard to determine that. As absurd as allowing 50 different standards producing different results would be, it would be all the more absurd to have a few thousand different standards producing different results. As thrilled as the Clown World left would be to force Trump to defend himself in 3000 different forums, they don't have the foresight to see that one day, it might be a candidate they like facing this unprecedented level of lawfare.

[Alpheus W Drinkwater]

You may be of the opinion that common sense dictates that. But does the Constitution? Or does the Constitution establish a system where each state determines its own criteria for selecting Presidential Electors?

[Josh R]

Are you with ReaderY that each state can decide for itself if Haley is a natural-born citizen? And, what if SCOTUS rules she is? Can each state still decide for itself?

[Ike B.]

If there was a genuine dispute over whether Nikki Haley was a natural born citizen, and therefore over whether she was eligible to appear on a ballot for President of the United States, in practical terms, how should it work?

Is the argument here that she MUST appear on the ballot, and that her eligibility be litigated after she wins?

[Ike B.]

I don't believe the claim that it wasn't done before 2022 is accurate: https://www.citizensforethics.org/reports-investigations/crew-reports/past-14th-amendment-disqualifications/

Is the argument here that there was an enacting statute between ratification and the amnesty law? One which has since been repealed?

[TheAmazingEmu]

The first case apparently involved a lack of dispute about qualifications as well. So I think there are questions when a party claims ineligibility and that claim is disputed.

One remedy is to leave it to Congress. The only issue there is Congress already, by majority vote, can refuse to seat someone (Art. I §5). That seems to be the power exercised by Congress when they determined ineligibility. It's a separate question about whether they have the exclusive authority to determine eligibility. It does seem weird that Congress needs 2/3 vote to remove the disability but only a simple majority to say the disability doesn't exist in the first place.

[Bruce Hayden]

One problem here is that the CO courts are adding a requirement or qualification for being President. They should know better, as they were slapped down by the US Supreme Court when they tried to impose term limits on the state’s US Senators and Representatives. I think it unlikely that they could add requirements for the Presidency, when they couldn’t for Senators and Representatives. Of course, if the disability were found in the Constitution (e.g. 14A § 3), that previous ruling wouldn’t be an issue.

[Randal]

Senators and Representatives are different because they're directly elected. The states are just helping administer the elections in those cases.

But the states can select their presidential electors however they want. They don't even have to have elections.

[Josh R]

Do you agree with ReaderY that states can keep people over 65 off the ballot without violating Article II, Section 1, Clause 5?

[Josh R]

I just read your reply below that "over 65" would violate EP. How about a state that thinks "natural-born citizen" precludes including on the ballot those delivered by C-section? Does that violate Article II, Section 1, Clause 5? Or in reference to Nikki Haley, precludes a person born in the USA of non-citizen parents?

[Randal]

I think natural-born-citizen would go the same way as I suspect this will go: it would get to SCOTUS and SCOTUS would remand saying that C-sections count as naturally-born for constitutional purposes. (Here it would be because POUTS isn’t an officer, most likely.)

At that point the state could change its mind or double-down by saying, for example, ok we’ll just explicitly not let C-section people on the ballot. Or, re-define natural-born (or insurrectionist) in the context of state law and make a state law that excludes their definition from the ballot.

[Josh R]

Just to be clear, you think 1) SCOTUS can hold that Nikki Haley is a natural-born citizen, and 2) nonetheless, a state can keep her off the ballot because, and only because, they think she is not?

[Randal]

Yes. Subject to other things like rational basis.

For example, if their rationale is that she’s not constitutionally qualified, that’s not a rational basis once SCOTUS says she is.

It’s hard to come up with a rational basis for excluding C-sections… especially one that’s not obviously a pretext. But, you know, assuming they had one and it was genuine, then sure.

[Randal]

Imagine the most extreme state law, which would be something like, "All our electoral votes go to Nikki Haley for as long as she lives."

That's probably constitutionally deficient, although I'm not sure exactly how. 🙂

[Josh R]

.

For example, if their rationale is that she’s not constitutionally qualified, that’s not a rational basis once SCOTUS says she is.

Wouldn't the same apply to Colorado and Maine once SCOTUS holds Trump is eligible under 14.3?

[Randal]

Yes, if they reach the merits and say he's not disqualified. If they merely say 14/3 isn't self-executing, which was the original premise of this thread, then that's different.

[Josh R]

SCOTUS holds that Trump must be on the ballot (no ifs, ands or buts) because 14.3 is not self-executing. And that holding applies even though Colorado and Maine have a rational basis for concluding he engaged in insurrection. I’m still not seeing how Colorado and Maine get around that ruling.

[Alpheus W Drinkwater]

No. Colorado is not adding a new requirement or qualification. They are enforcing one that's been on the books for over 150 years.

[Randal]

Also, even if Griffin's Case works against Colorado under the "Sword & Shield" theory (in which the plaintiffs are trying to use 14/3 as a Sword without enabling legislation), I don't think that argument works against Maine's Secretary of State, who required no cause of action to make her determination.

If she gets sued, she might even be able to say she's using 14/3 as a Shield.

[Josh R]

A shield to what?

[Randal]

A shield for the state's rulemaking against suit. The sword / shield dichotomy essentially says that non-self-executing amendments can be used by defendants but not by plaintiffs (without legislation enabling them to do so). The Secretary would be the defendant in Maine.

[Josh R]

Are you arguing the SOS can bar Trump from the ballot because she might be sued by someone to keep Trump off the ballot? Wouldn't it be the case she is already protected from that suit because 14.3 is not self-executing?

[Randal]

Let's say the argument of the suit was something like: 14/3 isn't self-executing and there's no enabling legislation, so it can't be a basis for disqualification. Therefore your decision to disqualify Trump is arbitrary and capricious.

I'm suggesting that, even if 14/3 is not self-executing, that argument fails. The Secretary can still use 14/3 as a basis for disqualification without federal enabling legislation, in a sense by using it as a "shield" against charges of being arbitrary and capricious. It's not arbitrary, she might say, it's right there in the Constitution.

[Josh R]

.

The Secretary can still use 14/3 as a basis for disqualification without federal enabling legislation, in a sense by using it as a “shield” against charges of being arbitrary and capricious.

The argument in the suit will be she is violating binding SCOTUS precedent that, lacking enabling legislation from Congress, Trump is eligible.

[Randal]

binding SCOTUS precedent that, lacking enabling legislation from Congress, Trump is eligible.

They might say that, but I seriously doubt it. Griffin’s Case doesn’t say that. It just says 14/3 can’t be used as a sword. It’s actually pretty up-front that the judge involved there is in fact ineligible.

The last thing SCOTUS wants to do is pronounce Trump innocent (and the second-to-last is pronounce him guilty). The whole point of taking a procedural off-ramp is to avoid doing so. So they would simply say that lacking implementing legislation, there's no mechanism for a suit like the one in Colorado.

Which works for Colorado, but not Maine.

[Josh R]

Again, if Maine's SOS leaves Trump off the ballot, there will be suit to get him back on and it will prevail under the SCOTUS ruling even though it did not reach the merits.

[Josh R]

Or putting it a different way, I find it very hard to believe SCOTUS will issue an ruling that prevents people from suing to get Trump off the ballot because 14.3 is not self-executing (the sword) while at the same time not allowing people to sue to get Trump on the ballot because 14.3's non-self-executing nature doesn't apply (the shield). The result strikes me as absurd.

[David Welker]

Blackman, no one cares how long you have been incorrectly interpreting the Constitution. That you have been wrong for a long time isn’t the argument in your favor that you think it is.

But also, that you are resorting to superficial metrics such as how long you have held a position rather than directly discussing the merits of your position is a superficial metric at least as powerful as your superficial metric of how long you have held a position. One might wonder, if your argument is so good, why not make it instead of talking

[David Welker]

(cont.)... about a superficial metric.

If someone said to you: "You should vote Democrat." And you asked them why, and they responded: "Because I have been a Democrat for 40 years." Would you find that dialogue helpful in deciding whether to vote for? And further, wouldn't you question the overall quality of this person's reasoning process?

[Davy C]

So you're saying he hasn't written enough here on this topic and you would like to see more?

[David Welker]

I am making a point about the quality of this particular argument.

[ObviouslyNotSpam]

Please don't.

[ReaderY]

1. Because Colorado law has plenary power to establish how presidential electors get appointed, Colorado can keep insurrectionists off its ballot regardless of what the 14th Amendment requires. The U. S. Supreme Court can let the Colorado Supreme Court decision stand without reaching 14th Amendment issue.

2. Griffin’s Case, as surviving into modern precedents, supports only the “de facto officer doctrine,” the idea that the acts of an ineligible officer remain valid absent an active act of removal. It does not impose an obstacle to Colorado’s decisions about how to manage its Presidential elector appointment process.

3. If the Supreme Court reaches the issue, Section 3 applies to Presidents, what Trump did violated it, and Trump got sufficient Due Process.

[Bruce Hayden]

Of course, he didn’t get sufficient Due Process. The trial court based its finding of facts, that Trump engaged in insurrection, on the findings of Pelosi’s highly political J6 committee, that contained 9 Democrats, and 2 now former Republican Representatives. The Republican minority leadership was not allowed to appoint a single member of the committee, in contravention of 230 years of practice in the House. And that meant that they couldn’t call a single witness of their own, nor could they cross examine a single witness called by the majority. Nor could they view any of the >14k hours of video heavily cherry picked by the Dems on the J6 committee. Compounding this, the House Democrats deleted the witness transcripts before turning over control of the House to the Republicans last January. Being able to confront your accusers is a key requirement of Due Process. This was denied Trump and the Republicans.

[JBogart]

The Colorado Court followed the same procedure for this challenge that has been followed for other challenges -- it held an evidentiary hearing, allowing both sides to present and argue whatever evidence the wished. The hearing lasted a couple of days (2 as I recall). The decision was based on the evidence presented -- furthermore the factual findings were not at issue before the Colorado Supreme Court, which entails they were accepted by both sides. There was due process in Colorado, the same as any challenge to listing a candidate.

[Bruce Hayden]

Not really. It was an expedited hearing under CO election law. The Republicans were not allowed to introduce the reams of evidence they now have, the video that they just got from the Democrats after taking over the House last January, etc. It was an expedited hearing, under a statute that prioritizes closure over completeness. What they did admit into evidence, and found persuasive, was the Dems’ J6 Investigation Report, despite it having none of the indicia of reliability that you would expect I a Hearsay exception. Because Pelosi appointed ALL members of the committee, and the Republican House leadership none, there was no opportunity to crossexamine any of the witnesses, to introduce any of their own witnesses or evidence, etc. And then, in order to prevent review of what they had done, all of the witness transcripts were deleted/destroyed before the Dems turned over control of the House a year ago.

[SimonP]

Cool talking point, bro. But people with some legal expertise and familiarity with the proceedings in Colorado can see right through it. Go peddle this nonsense among MAGA-mouth-breathers who don't have any interest in the truth.

[Jason Cavanaugh]

Your unblemished streak of posting lies continues!

[David Nieporent]

Bruce, the problem is that — as always — you are lying. The Republican minority leadership was allowed to nominate five members of the committee. They did, and Pelosi accepted three of them. They just chose not to serve. Ken Buck testified that he offered to serve, and McCarthy, not Pelosi, said no.

You don't get to claim a process is illegitimate just because you voluntarily chose not to participate in it.

And, once again, you liar, not a single witness transcript was deleted.

[Ike B.]

And even if all of what Bruce said about them was true, the January 6 hearings were not the only thing the Colorado trial court considered.

[Randal]

None of that committee stuff matters. The Due Process came in the district court hearing. Trump was free to object to that whole J6 line of evidence.

[F.D. Wolf]

Your first argument is largely ludicrous, but does contain a tiny kernel of truth. Nothing in the Constitution requires a state to have a popular presidential election at all. The state legislature could pass a law declaring its electoral votes all go the Democratic [or Republican, Libertarian, Socialist, etc.] candidate for President. Or, as some states did in the past, simply have a vote in the legislature. But, if it does have an election, it can no more say "no insurrectionists on the ballot" [eye roll], any more than it could say "no blacks" or "no one over 65" or "no schoolteachers" on the ballot. This would be adding qualifications beyond those specified in the Constitution (among other constitutional issues that might be implicated). Additionally, as no one in the case has made the argument you are making, it seems extremely unlikely that the Supreme Court is going to raise it for them (even if it was a semi-credible argument).

Your second argument is your unique reading of Griffin's Case, which, as far as I know, has not been adopted by anyone else. Most critics simply say Chief Justice Chase was wrong and/or had ulterior motives.

Your third "argument" is merely a conclusory statement, which can appropriately be countered with, "You're wrong."

[David Nieporent]

But, if it does have an election, it can no more say “no insurrectionists on the ballot” [eye roll], any more than it could say “no blacks” or “no one over 65” or “no schoolteachers” on the ballot.

Just to be clear, ReaderY's position is that states can say those things. (Well, not "no blacks," but only because the EP clause would forbid it.) His position is that because the state legislature itself could constitutionally pick whatever candidate it wants for president using whatever criteria it wants (other than those expressly proscribed by some other constitution restriction), it can restrict who voters can pick in the same way.

[ReaderY]

Not so. Anderson v. Calebrezze, which struck Ohio’s presidential ballot filing deadline law as imposing an unfair burden on independent candidates, establishes only that the 14th Amendment’s Equal Protection clause, which cabins all state powers including states’ Article II Elector Appointment clause powers, requires that, for states with a popular election, all eligible candidates must get an equal chance at the ballot. It’s the precendent for Bush v. Gore, which similarly held that the Equal Protection Clause requires that all citizen-voters must get an equal say in the vote. Bush v. Gore expressly held that the 14th Amendment limited state’s elector appointment powers, but only by requiring that the choice delegated to the voters is delegated equally among them. Anderson v. Callebrezze didn’t explicitly say that about candidates. But that was effect, and in light of Bush v. Gore and Chiafolo v. Washington, that’s how I’d read it.

In short, none of the cases striking down Presidential election laws says thst states can’t impose ballot qualifications. They were all Equal Protection type case consistent with this understanding of what Equal Protection means.

Yes, the Equal Protection clause definitely means that a state can’t limit its ballot to whites only or violate other protected classes subject to strict scrutiny. But it definitely lets a state impose any qualification that’s only subject to rational basis scrutiny it wants, as long as it has a rational basis for it. It can require a college degree, not having been convicted of a felony, not being an insurrectionist, anything it wants. Any qualification it can constitutionally impose for an ordinary job or office, it can impose for the office of President.

A “no insureectionists” restriction pretty clearly does not involve a protected class, passes rational basis, and satisfies Equal Protection. It therefore remains well within Colorado’s Article II elector appointment powers even after taking into account the limitations imposed by the 14th Amendment.

[F.D. Wolf]

And what of U.S. Term Limits v. Thornton (1995), in which the Court said a state could not deny ballot access to a congressman who had already served a certain number of terms, because that would be adding qualifications to the office which are not enumerated in the Constitution? Do you imagine it would find a meaningful distinction between ballot access for a congressional candidate and a Presidential candidate?

Perhaps you recall when California passed a law denying primary ballot access to a presidential candidate who did not disclose his tax returns? (Golly, I wonder if they had anyone particular in mind). That law was struck down by a federal judge, citing Thornton. Griffin v. Padilla, 417 F.Supp.3d 1291 (E.D. Cal. 2019). (The law was also struck down by a unanimous state supreme court, though on state constitutional grounds.)

[ReaderY]

Completely irrelevant. The Constitution assigns selecting members of Congress to the People, so stste legislatures cannot take away their unfettered right to decide.

But that Constitution assigns selecting the President to a college of Electors appointed as directed by each State Legislature.

Exactly as Thornton held that the power of the people cannot be taken away from when the Constitution assigns the choice to them, the power of state legislatures to control their state’s say in how the Pressident gets selected cannot be take away when the constitution assigns the choice to them. As it did.

I just want to point out that the same reasoning would apply to the judicial branch. Congress can’t pass a law providing for elections as the manner of selecting federal judges, or set additional qualifications for them either, for reasons analogous to Thornton.

Congress can’t take away the President’s constitutionally assigned power over selecting federal judges, in exactly the same way it cannot take away state legislatures’ assigned power over selecting Presidents, or the people’s assigned power over selecting members of Congress.

In all three cases, the constitution’s assignment of selection power cannot be disturbed by anyone else.

Judge England’s opinion striking the California law down in Griffin v. Padillaa was simply wrong. Judge England could just as legitimately have cited Thornton to strike down the Senate’s refusal to confirm Merrick Garland as a Supreme Court Justice a on grounds that Congress has no more power than state legislatures to set qualifications for federal judges beyond those set out in the constitution.

Frankly, I’m surprised no-one tried that line of reasoning. Thornton would have been equally good authority, just as clearly applicable.

[F.D. Wolf]

Call me cynical, but when state officials start taking Biden off the ballot, as the Missouri Secretary of State has threatened to do if Trump is disqualified, I suspect your commitment to your novel theory will waver.

Regardless, I agree with the great weight of legal opinion that the Supreme Court will reverse the Colorado decision. At least when it happens, you will have comfort in knowing that it too was wrong.

I guess we'll know soon enough.

[Alpheus W Drinkwater]

I believe you are wrong, but I was admiring the clear and impersonal way you were making your argument. I was then saddened to see you retreat to the usual 'ascribing bad motives' bullshit we usually get around here.

If other states take Biden off the ballot, then he's off the ballot. When enough states don't want you to be President, you don't get to be President. That's the somewhat loony system the Constitution gives us. The state's choice to hold elections to determine Electors may include some limitations on the state, but it doesn't change the basic structure. Choosing a President is a state by state process, not a national one.

[Randal]

It couldn't say "no Blacks" or "no one over 65" because of Equal Protection, not because of No New Qualifications.

It might be able to say "no schoolteachers." Probably just rational basis on that one.

[ReaderY]

The question of whether a state can impose its own ballot qualifications i na presidential election was very clearly raised in Trump’s cert petition. Trump’s second issue (his first merits issue) was that only Congress can determine whether Section 3 disqualifies him. He specifically argued that Colorado could not. And in support of that argument, Trump specifically argued that Anderson v. Callebrezze stood for the proposition that states lack the power to impose their own ballot qualifications.

This exact issue was very clearly and specifically raised. That’s why I’m giving attention to what Anderson v. Calebrezze means and what it actually held.

[ReaderY]

To clarify, Trump made a general argument that only Congress could decide if he was qualified to be President and states have no say in the matter. His argument wasn’t limited to Section 3.

His second reason for granting the cert petition was titled “Disputed questions of presidential qualifications are reserved for Congress to resolve.”

This argument was composed of two parts. First, he argued that Congress and not the federal courts was assigned the responsibility of resolving federal disputes about Presidential elections. Second, he argued that the entire matter was uniquely federal and not state. Trump specifically argued that the 14th Amendment stripped states and state courts of any prior powers they have to determine qualifications and resolve disputes about them.

Trump’s petition sais “It would be beyond absurd, particularly in light of the Fourteenth Amendment’s enalrgement of federal authority – that this issue would be nonjusticiable by federal courts and yet properly heard by courts in 51 jurisdictions. The election of the President is a national matter…”

My position is that this argument is nonsense. I think his previous argument that federal courts can’t adjudicate Section 3 is wrong, but let’s set that aside. Fundamental to a federal system is the idea that some matters get adjudicated by state courts and some by federal courts.

Trunp’s lawyers recognized that Bush v. Gore limited federal challenges to state presidential procedures to 14th Amendment challenges, forcing them to make a 14th Amendment argument. But they proceeded to give the 14th Amendment an absurdly expansive interpretation. The 14th Amendment in no way stripped states of their powers to determine elector appointments. It didn’t require popular elections as the only way to determine who is president. It didn’t strip state courts of their powers to adjudicate disputes.

The 14th Amendment only imposes a simple and limited obligation. When states have a popular election, the procedures for that election have to be fair and equal. The state can’t shut some of the voters out. It can’t make things harder for some eligible candidates than for others.

But none of that in any way removes each state legislature’s core and express Article II powers to direct how the state’s electors shall be appointed, including setting rules for who is eligible to be on its ballot (if it has one) in the first place. And nothing removes the power of state courts to interpret state law and adjudicate disputes in their own way.

Although the 23rd Amendment said that the District of Columbia’s electors get chosen chosen by popular election, for the remaining 50 states, having 50 jurisdictions each going its own way and making its own decisions about how to select the next President is not “beyond absurd” as Trump’s cert petition argued. It is only far from absurd, it is exactly the system that the Framers of our Constitution established.

[David Nieporent]

The question of whether a state can impose its own ballot qualifications i na presidential election

…has nothing to do with this case. Colorado is not imposing its own ballot qualifications. It is implementing the qualifications specified by the constitution. If one wants to argue it can't do that, one can, but one can't argue that Colorado is coming up with its own.

[ReaderY]

It said Mr. Trump is not eleigle to be on the Presidential ballot by the Colorado election code, on grounds that Colorado law incorporates Section 3. Not just Section 3, but the Colorado Supreme Court’s interpretation of Section 3.

The Supreme Court is absolutely free to hold that this represents an adequate and independent sate-law ground for the Colorado Supreme Court’s decision, one that Colorado’s Article II elector appointment powers give it the authority to make.

It doesn’t have to rule this way. But it could. Trump’s petition covered this outcome. It’s before the Court.

And it could be relevant. If for example the Supreme Court reaches the issue of whether the President is an “officer” under Section 3, it might hold that the President isn’t one. Or it might decide not to reach that issue because Colorado could disqualify Trump regardless.

[John Rohan]

If I were Trump's lawyers, I wouldn't want either of those issues to be the primary ones, in fact, I would prefer they weren't even debated.

Instead, I would try to shift the issue to whether or not Jan 6 was really an insurrection (the eternal debate on this site). Because if SCOTUS rules that the president isn't an officer for purposes of sec 3, then the talking point on the other side would be "the insurrectionist is skating through on a technicality!!"

[Josh R]

The smart money is on SCOTUS not addressing the merits (at least not in a majority opinion).

[Randal]

George Conway, for what he's worth, made the interesting point that there's no way SCOTUS is going to say that Trump didn't engage in an insurrection. It just makes them look so stupid and political.

It's also pretty unlikely IMO that they'll say he did.

[David Nieporent]

Agreed. SCOTUS might say that it's not for Colorado to decide whether he did, or that there was insufficient due process, but they're not going to proclaim Trump to be innocent of involvement.

They could say that what happened on J6 doesn't qualify as an insurrection, though.

[ReaderY]

Or they could say it IS for Colorado to decide, but Colorado’s decision isn’t binding on everyone else because at the elector-appointment ballot stage, Article II lets Colorado decide for itself, and everyone else for themselves.

Very relevant. Very much a possible way out if the Supreme Court is looking for one.

[Randal]

And plus, even if SCOTUS did say he’s disqualified, they can’t force states to take him off the ballot. He’d still be on in most states.

Then… what does the RNC do? That’s what matters most, really. They can nominate whoever they want. Do they nominate someone that the Supreme Court has said is disqualified? I think probably not, but predictions are hard where Trump is involved.

[Josh R]

The "out" SCOTUS is looking for is Trump is eligible throughout the country without reaching the merits of whether he engaged in an insurrection. That is, letting each state decide for itself is not an "out."

[Ike B.]

"Or they could say it IS for Colorado to decide, but Colorado’s decision isn’t binding on everyone else because at the elector-appointment ballot stage, Article II lets Colorado decide for itself, and everyone else for themselves."

I think this is the most likely rationale, if it leaves the Colorado decision alone. I don't, however, expect them to leave it alone. I expect them to strike it down on Due Process grounds, and they're gonna cite Bush v. Gore when they do it.

[Randal]

Bush v Gore was about Equal Protection, not Due Process. Also it has a “do not cite” clause. Also Due Process is the least likely ground for SCOTUS to choose... setting a ridiculous precedent that’ll pull federal courts into all kinds of ballot access disputes.

I give this prediction a D-.

[Ike B.]

The nice thing about predictions is you don't have to actually rate them.

[David Nieporent]

It does not have a "do not cite" clause. I know people who hated the decision like to claim this to make it sound more radical, but nothing in the decision remotely hints at that. What it says is simply: (paraphrased) "read this opinion narrowly. We're in a rush and we're not addressing every possible permutation of the issue that could arise." Indeed, the case has been cited.

[Randal]

They could say that what happened on J6 doesn’t qualify as an insurrection, though.

Even that, the arguments are bad. The Whiskey Rebellion isn't a rebellion? I don't think it works.

Kagan would tear that opinion apart.

[Josh R]

.

They could say that what happened on J6 doesn’t qualify as an insurrection, though.

It would shock me if they did.

[David Nieporent]

It would shock me a lot less than them ruling that Trump is innocent.

[Lee Stillman]

The simplest out for SCOTUS is to state that 14.3 is not applicable because Trump has not been convicted of any crime that could charitably referred to as "insurrection", and an evidentiary hearing in Colorado is absolutely an insufficient venue to decide a Constitutional question. The Supes don't have to approach whether 1/6 was a riot, an insurrection, or a Sunday walk in the park.

CO's position is like trying to prosecute someone for a felon-in-possession case, when the defendant has never been convicted of a felony. Saying, "Well, we had a hearing, and we're pretty sure he's guilty of X, Y, and Z, although he's never even been formally charged," doesn't cut it.

[Ike B.]

That would be a very simple, if atextual, "out." I agree that they could avoid tangling with the question of whether it J6 was an "insurrection" and whether Trump "engaged" in it, but requiring a criminal conviction isn't found anywhere in the text and while such a thing would certainly be sufficient evidence on both those points, it isn't obvious that it is necessary. You can go down the same road but take an earlier off-ramp by stating that the process through which Colorado made these factual determinations was Constitutionally deficient and inherently unfair to Donald J. Trump, Candidate for Office.

[Brett Bellmore]

It's perfectly textual, it just treats federal insurrection law as Section 3 enabling legislation.

[Ike B.]

Did the federal insurrection law treat itself that way?

[David Nieporent]

CO’s position is like trying to prosecute someone for a felon-in-possession case, when the defendant has never been convicted of a felony.

It's "like" that except for being entirely unlike that since they're not prosecuting him.

[Lee Stillman]

No, but they are denying him his rights without adequate due process.

[David Nieporent]

Setting aside the odd notion that there's a right to run for office, he got due process. Unless it's a criminal prosecution, no criminal trial is required.

[Brett Bellmore]

He got process. Whether it was due process is one of the things the Court will be considering.

And I think the CO court's heavy reliance on the Jan 6th committee report will be central to that question. They just blew off every reason for not considering it reliable.

[David Nieporent]

The only reason that Trump argued for why it wasn't reliable was that it didn't have enough Republicans on the committee. He didn't bother to challenge its substance.

[Bruce Hayden]

They won’t address the merits, because they aren’t the finder of facts. But I don’t think that they will say that there was an Insurrection, when a majority know that there wasn’t.

[F.D. Wolf]

I think you're right, but, of course, the Supreme Court isn't going to do something just because Trump's lawyers want it to. Besides, how really does one "shift the focus"? Five minutes instead of three at oral arguments?

Chief Justice Roberts will want unanimity (or as close as he can get), and I think this "officer of the United States" is a good landing place for compromise. That January 6 was worse than Pearl Harbor and 9/11 combined, multiplied by a thousand, has become an article of faith for the lunatic Left, and I think he'd want to avoid that issue if possible. If one justice insists on a vitriolic anti-Trump screed about the horrors of January 6, then Thomas and/or Alito, will respond in kind. I can see Roberts saying, "Let's all be cool. No one say there was an insurrection, and no one say there wasn't, because that will just become political fodder (as well as be used in the pending Trump cases). Let's just say, the President isn't 'an officer of the United States' and go home."

[David Nieporent]

I'm not actually sure that unanimity will be his goal here. I think the Supreme Court saying that Trump can stay on the ballot but not giving a reason why is actually the more conservative position here. (Not politically conservative, but judicially conservative.) The Court would decide this case without issuing a sweeping ruling — especially a ridiculous one like "the president isn't an officer." Having 3 or 4 different rationales, none of which command a majority, is basically a way of deciding without setting any precedent at all.

[Josh R]

I'm not cynical enough to believe Roberts will intentionally not have a majority opinion to avoid setting precedent. But assuming I wrong, can you imagine the discussion at conference? Roberts puts forth four rationales for keeping Trump on the ballot and assigns two justices to each of them (plus himself to one of them) and all agree no justices are allowed to join more than one opinion. Yikes!

[David Nieporent]

Smirk. Yeah, I wasn't proposing anything that Machiavellian. Just that he wouldn't push hard for unanimity.

[Orbital Mechanic]

"Our candid message to you—the reader—is to approach such new, late-breaking entries in the debate with some caution."

This could only have been written by someone who has never perused these comment sections.

[BLW]

No one seemed to bat an eye when Senator Doolittle (R-WI) referred to the “President as the chief executive officer of the Government.” (Congressional Globe p. 2914 May 31, 1866).

[hobie]

I see you referenced several times your little pop-gun Louisville Journal article in your amicus, Blackman. That is definitely, definitely not a bush league thing that will cause you embarrassment.

[Ike B.]

I'm not sure that "Critics with little or no expertise in the field will find something, anything, to prove that we are wrong" is the flex Josh thinks it is. "Laymen keep pointing out flaws in my argument that I don't like" isn't exactly something to brag about.

[Rick Happ]

All of the legal posturing is interesting but besides the point. If SCOTUS does not stop this - removing Trump from ballots - we will be thrown into chaos. Every one of these cases is a political decision, wrapped in legal justifications to satisfy one side or the other. If SCOTUS does not put a stop to this, then heaven help us with what's to follow.

[Randal]

Nobody cares about this threat because the people making it have already proven themselves to be irrational. It doesn't matter if Trump is on the ballot or not, these people aren't going to accept the election results no matter what.

So, bring it, I guess.

[Homeros]

Exactly. Given history, it's clear as day that disqualification in practice is unworkable. If a so-called insurrectionist is odious and unpopular, disqualification is not needed. If he or she is popular, then legal disqualification is politically unworkable.

Besides, the rational position for the left is that Trump is the only candidate Biden could possible win against.