Supreme Court To Hear Trump Primary Ballot Challenges
Photo by Phil Roeder, CC BY 2.0
Moving at what is, for them, a sense of urgency, the Supreme Court of the United States will hear oral arguments on Trump appearing on primary ballots amid 14th Amendment challenges.
Washington Post:
The Supreme Court said Friday that it will decide whether former president Donald Trump’s name can appear on primary election ballots, scheduling arguments just five weeks from now in a case that will have a major impact on this year’s presidential election.
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Colorado’s top court disqualified the Republican front-runner from the ballot last month, finding that he engaged in an insurrection before and during the Jan. 6, 2021, attack on the U.S. Capitol. Similar arguments have been made to keep Trump off the ballot in other states.
While some of those challenges have failed, including in Michigan and Minnesota, the efforts are still pending in Illinois, Oregon, Massachusetts and elsewhere. Maine’s top election official last month barred Trump from that ballot, an order that the former president has appealed in state court.
Friday’s announcement puts the justices in a pivotal, and potentially uncomfortable, position with echoes of the court’s involvement in the 2000 election — when its decision assured victory for George W. Bush polarized the nation and damaged the court’s reputation as an independent institution.
The court’s brief order scheduled oral arguments for Feb. 8 and came a day before the third anniversary of the Capitol riot.
I had honestly thought that they would have said “Moot!” by today at Close of Business.
Jeez. They’re obviously hoping to never hear about this crap ever again. Even decades later.
Good for them.Report
I’m hoping for a unanimous or near near decision whatever it is. It’s going to be brutal if it’s strictly partisanly decided.Report
near near=near unanimous grrr typo dust is thick tonight.Report
You’re going to get 5-4 and you’re going to like it.
Though if you want to argue something like “My Principles Tell Me That I Should Be Yelling Something!”, lemme know.
If I am in the correct mood, I will take your side for, at least, a day. (Note: The promise of a $7 bottle of wine will get me there.)
Seriously. Lemme know.Report
Well if the court is strictly originalist (or if the conservative judges nakedly decide that Trump is of no further use to their movement) then Trump will be off the ballot nationally. If they’re consequentialist or political then Trump will be on the ballot nationally.
But a 5-4 decision keeping him on the ballot or kicking him off the ballot would be.. sub optimal to say the least.Report
Might be wrong, but I suspected they would just issue a ruling statement. If they are doing a warp speed oral to issue a ruling, I suspect they are going to really stomp all over this hard enough to prevent anyone from doing it again anytime soon.Report
I’ve heard rumblings of “you know what, we should do that too” multiple times from multiple states over multiple candidates.
Stupid, stupid, stupid.Report
I could envision SCOTUS affirming that Section 3 does apply to the President — squashing the most frivolous defense offered by Trump in CO — while also asserting that Section 5 reserves to Congress what constitutes Insurrection under which someone is to be charged and convicted.
https://www.law.cornell.edu/uscode/text/18/2383
A minimalist approach to Trump would have been to prove (if possible) direct communication between him and the Proud Boys who were charged under the sister act of Sedition and then merely fine him $5k under the Insurrection Act.
My question to legal folks would be that it appears a conviction of Sedition doesn’t carry the ban from office… so wouldn’t that imply that Jan 6 was Sedition and not Insurrection? How would you climb the ladder using an actual conviction?Report
Congress can, and probably should, create procedures and standards for the implementation of Section 3, but nothing actually in the Constitution requires it to do so. Is Section 3, therefore, a dead letter unless Congress acts? Hard to see why this would be so. Nothing else in the 14th amendment is a dead letter unless Congress acts, so why should Section 3 be? As a policy matter, Congress’s failure to act is undesirable, but it doesn’t mean that the Supreme Court can say Section 3 cannot be enforced in any way unless Congress acts. And the normal default way things are enforced in the absence of Congressional action is action under whatever procedures state law provides, subject to Supreme Court review.Report
Having read more of the ‘self-enforcing’ debate in the late 60s over Jeff Davis and seeing the many congressional acts that congress specifically passed regarding Section 3, ultimately culminating in the Amnesty of 1872 (which was written in such a way that it settled the Davis matter by eliminating him as a Senator of the 36th congress) … I’m even less impressed by this angle than when I’d read nothing about it.
Still seems clear to me that after 1872, congress settles in to plain definitions of insurrection that are tweaked periodically, but require/imply trial/conviction under the US Code.
Still you may be right… I’m just a guy on the internet and not arguing legal theory in front of SCOTUS.Report
The real answer is that in the absence of some on point authority no one knows. Until SCOTUS says otherwise it’s possible the courts could just apply the language to the facts. Prior to the advent of originalism there was more of a tendency to take that kind of approach.
Now, as I’ve said elsewhere, I think that outcome is unlikely. But Donald Trump and the Republican voters of Colorado have demanded to find out so here we are.Report
I think Robert’s is looking for someone to rid him of this fool without having to get his hand dirty. Protecting his and his courts reputation and all that malarkey.Report
6-3, in the obvious split, with Roberts writing the majority opinion, desperately trying to look principled. Thomas and Alito concurring that Trump is eligible, but finding that Biden is not.Report
I honestly don’t know the answer to this, but what is the enforcement mechanism of the 14th amendment?
Who does have the power to prevent an insurrectionist from taking office?Report
Congress.Report
So in January 2025, when Congress convenes to ratify the results of the election, Vice President Kamala Harris as head of the Senate, can reject the electors for Trump?Report
Not since Congress passed the New Electoral Count Reform Act in 2022.
The real question is whether under the new Act one-fifth of Congress could object to electors from States that banned a candidate. My simple reading is, No. But I’d expect that objection to hit the floor and then hit SCOTUS.Report
So this leaves the question open.
Who or what enforces the 14th Amendment?
A simple majority vote by the House and Senate?Report
Yeah, I’m not sure this is some sort of cipher you’re trying to imply.
Section 5: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article”
https://www.law.cornell.edu/uscode/text/18/2383
A simple majority could certainly change the Code to make Insurrection broader, narrower, better or worse… but it would only apply from the date it is signed into law.
That’s the point of changing the ECRA in 2022. [Now Title 3, Chapter 1, Section 15 of the US Code]Report
Does the 14th Amendment require a conviction under the article you’re citing?
This is an honest question to which I don’t know the answer.
I’ve read the Amendment and it appears to be silent on enforcement.
For example- the Constitution requires a President to be a natural born citizen over 35.
OK, suppose a political party places the name of a candidate who is 30 and foreign born on the state ballot for President.
Can the state Secretary of State refuse to place the name on the ballot?
Can Congress refuse to accept the electors?Report
*I* think it does, yes. Section 3 and Section 5 are both the 14th Amendment; and Congress *has* passed a law in the US code which defines Insurrection and specifically calls out that a conviction under that section of the US code would render that person “incapable of holding any office under the United States”
The ‘finding of fact’ would require that particular fact be found.
Regarding Age/Citizenship … if we take the position that any state judiciary can appropriate an opinion on, say, a Short Form birth Certificate, or maybe wax eloquent on Babies born in Panama then we’re setting ourselves up for really interesting interpretations on aid and comfort to enemies or any such thing that requires interpreting ‘aid’ or ‘comfort’ or ‘enemies’.
Plus, I think there’s a reasonable question about whether a State Court in, say, Michigan can have or render an opinion about actions in, say, Portland, OR that would disqualify some up and coming politician 20-years hence.
So the thing about Section 3 & 5 is that Congress ‘did’ pass laws governing Insurrection and the courts can prosecute Trump under those laws and if found guilty would be explicitly ‘incapable’ of holding office.
Finally, regarding electors… I said in my original comment that my plain reading of the NEW ECRA is *No*, this particular issue is not one of the two issues that Congress can object to…
That said, congress is made up of Lawyers who, I’m rather confident, would attempt to torture the ECRA definition that vote of one or more Electors “has not been regularly given” to attempt to cover this ‘irregular’ situation.
But you know, there’s no accounting for lawyers stretching the plain meaning of the language.Report
Congress does have that power if it chooses to exercise it. The harder question is who, if anyone, has that power when Congress doesn’t act. The rest of the 14th amendment can be enforced by Congress, but it can also be enforced in a variety of ways if Congress doesn’t.Report
Once again we see a cowardly and probably compromised SCOTUS being asked to clear up something that America’s founders couldn’t have foreseen, and that an equally cowardly set of GOP senators chose to enable by not convicting him when he was impeached. Clearly we no longer deserve the few shreds of Demi racy we are trying to protect.Report
Just to be clear, the part of the Constitution we are discussing was drafted when the rubble of Atlanta was still smoldering by people who were keenly aware of what insurrectionists looked like.
Trump and the Trumpists aren’t new or novel or unforeseen. Had Lincoln lost, or had the balance of power in Congress shifted slightly the Civil War might never have happened in a victory for the slaveholders.Report
Yes and?Report
The arguments being made about Trump take the assumption that somehow the drafters of the 14th never imagined it applying to someone like Trump.
They were specifically thinking of someone like Trump. In 1865, any one of the Confederate generals could have easily won election to any office.Report
(Gen.) John B. Gordon and (VP) Alexander Stephens *both* served in Congress after the Civil War. That’s just a quick survey of the list of the 43rd congress (1873).
As an aside, ChatGPT stonewalled attempts to have it cross reference the 43nd congress and former confederates… which I thought was interesting.Report
Indeed they did, because their disabilities were removed by the Amnesty Act of 1872. Stephens was elected to the Senate in 1866, but was barred from serving. After 1872, he became eligible and went to Congress.Report
Right, and Chase contemporaneously found the Self-Enforcing theory not to hold specifically with regards Jeff Davis. Congress passed the Amnesty law and specifically wrote it so that Davis couldn’t obtain amnesty; then congress wrote new Insurrection law into the code. So we have an enforceable insurrection law in the code already.
If judges are finding for insurrection on the bench, then it should be easy for the AG to charge Trump with Insurrection and obtain a simple and obvious conviction via trial. No?
I won’t pretend to know how SCOTUS will approach this; so I guess we’ll have to wait until Feb to see how the orals are received.Report
Chase sitting on circuit was one judge with one vote, even though he was Chief Justice.Report
More for completeness of reporting than anything, be aware Trump’s name will appear on the Colorado Republican ballot. The appeal to SCOTUS was filed in time to trigger the Colorado supreme court’s stay of their own order. The ballots will be printed and in the county clerks’ hands before the SCOTUS oral arguments are held. I believe Colorado statute makes provisions for the case of a name being improperly on the printed ballot, and that if SCOTUS upholds the Colorado supreme court decision (before the primary on March 5) the votes for Trump will simply be discarded.Report