Law ‘Splainer: Trump v Anderson

I don’t know if you’ve heard, but there’s a court case out of Colorado making some headlines right now. It’s the matter of Trump v Anderson, and concerns whether Trump should be on the ballot as a presidential candidate in the Colorado Republican primary.

A group of voters in the Centennial State ¹ filed suit against Colorado’s Secretary of State, arguing that Trump could not be on the ballot because of what they described as his acts of insurrection.

They rested their claim on Section 3 of the Fourteenth Amendment to the US Constitution, which reads as follows:

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer
of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

The group of voters bringing the claim, 4 Republicans and 2 unaffiliated, of course cited Trump’s actions on January 6, 2021 as the basis of their claim of insurrectious (if that isn’t a word it should be) behavior.

The District Court in Colorado, while agreeing that Trump “engaged in insurrection”, found in Trump’s favor because Section 3 does not mention the presidency, and that (oddly, in my opinion) the presidency is not an “office of the United States.” The state’s Supreme Court disagreed with that interpretation and found in favor of the group of voters, ordering that Trump’s name not be on the ballot and that any write-in votes for him be discarded. However, the ruling was stayed, and Trump petitioned the US Supreme Court for review.

In the ensuing weeks, those with the time to spend on such things have watched, listened, speculated, fretted, and anxiously anticipated the Court’s ruling (as if it were ever in any doubt. But I digress.) Finally, one day before Super Tuesday, we have their answer. In what will surprise only the most naïve among us, the Court ruled that Colorado could not prevent Trump from being on the ballot.

The opinion, which you can read for yourself right here, consists of an unsigned majority and two concurrences. Believe it or not, the overall crux of the opinion was 9-0. We don’t know who authored the majority, but it was agreed upon by Roberts, Gorsuch, Alito, Thomas, and Kavanaugh. In addition to the majority, we have a concurring opinion from Justice Barrett, writing very briefly and only for herself, and a separate concurrence by Justices Kagan, Sotomayor, and Jackson. Let’s try to break it down a bit:

First, the majority. The salient holding, agreed upon by the entire Court, is that Section 3 is not enforceable by states as to federal office holders. As the Court explains, the Fourteenth Amendment was an implementation of broader federal power over the states, not an expansion of states’ rights, and the intent of Section 3 specifically was to prevent secessionists from holding office in the post-Civil War era. The majority goes a step further, holding that Section 5 of the Amendment grants Congress the power to enforce its provisions. The majority goes on to describe how enforcement must take place, holding that only federal legislation may prevent an individual from taking federal office under Section 3 (that, or the will of the electorate.)

The majority opinion precludes any other enforcement mechanism, which is a step too far for the remaining justices.

Justice Barrett’s concurrence is only two paragraphs:

I join Parts I and II–B of the Court’s opinion. I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that. This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.

The majority’s choice of a different path leaves the remaining Justices with a choice of how to respond. In my judgment, this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.

Barrett’s contribution chides the majority for what she sees as an unnecessarily broad decision and then tone-polices the concurrence of the other three. Were I prone to sexist stereotypes or rhetoric, I might insert a witty comment here about Barrett’s experience as a mother of 7 children . (How perfect would that be if she had 8?)

The remaining three justices do in fact amplify disagreement. But first, the agreement:

In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oath breaking insurrectionist² and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment. Allowing Colorado to do so would, we agree, create a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles. That is enough to resolve this case.

(Footnote added.)

But because the majority did not stop there, neither did the three. Their major beef is that even though the only question was whether a state can enforce Section 3, the majority went on to prescribe rules for how enforcement should occur at the federal level, thereby answering questions that are not before the Court. The majority, the three complain, have thus precluded judicial enforcement of Section 3, or “enforcement under general federal statutes requiring the government to comply with the law.” They then accuse the majority of paving the way for future insurrectionists to hold federal office unchallenged.

Personally, I agree with Barrett; none of the extra was necessary beyond a simple ruling about the lack of State power to enforce Section 3 against presidential candidates. Both the majority and the three justice concurrence succeed only in feeding the increasingly valid criticism of the Court as a partisan actor; the more words they write, the further they venture beyond the legal question at hand, the more credence is given to those who call them biased. It pains me, as someone who was once a staunch defender of SCOTUS as a mostly well-intentioned caller of balls and strikes (with some admittedly glaring exceptions.)

So, that’s what SCOTUS had to say about efforts to keep Trump off the ballot, slightly truncated for consumption here. We can expect similar efforts in Maine and Illinois to be thwarted in light of today’s ruling. Trump’s criminal charges arising from January 6 persist, though the Court will take up his immunity appeal in April. One can only imagine how divisive that opinion will be. It’s going to be a rough summer.

1. I had to look that up; I was certain the state nickname would be mountain-related.
2. That Trump is an oath breaking insurrectionist is not decided in this case but rather taken as the underlying assumption for purposes of the question presented.