Thursday, December 21, 2023

A deeper dive into the Trump Ballot Ban

 I spent a little time today skimming through the Colorado Supreme Court decision in Anderson v. Griswold, which shall hereafter be known as the “Trump Candidacy Ban” case. It is interesting reading, not least because of its appeals to its target audience comprised of six people. You know them by name: John Roberts, Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. 

As I read through the Colorado decision, one of the first things that I noticed was that much of the ruling dealt with Colorado statutes that allow the state’s voters to challenge candidates who they believe to be unqualified to be on the ballot. The court ultimately ruled that the voters challenging Trump’s access to the ballot had standing to sue to remove Trump from the ballot. 

Not all states have such laws, however. If you’d like to know whether you can challenge candidates in your state, I have not found a good resource that sums up state laws regarding removing candidates from the ballot, but the Project on Government Oversight notes that all 50 states have excluded ineligible candidates for various reasons and suggests contacting the Secretary of State’s office to determine the process for your state.

a wooden gaven sitting on top of a white counter
Photo by Wesley Tingey on Unsplash

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In terms of the 14th Amendment, the ruling holds that the ineligibility for insurrectionists attaches without congressional action and without a conviction. The ruling quotes “The Civil Rights Cases” of 1883 in which the Supreme Court held that the 14th Amendment “is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances.” 

The ruling also asserts the court’s authority to determine Trump’s eligibility under the 14th Amendment, but it doesn’t go into detail about the fact that text, history, and tradition do not require a criminal conviction for sedition or a similar charge, but the group that underwrote the lawsuit, the Citizens for Responsibility and Ethics in Washington (CREW), does provide historical background on officeholder bans. 

The 14th Amendment was ratified in 1868 and the purpose of Section 3 was to prevent voters in the southern states from sending former Confederates back to Washington and their state capitols and county seats. Defiant rebels surely would have kept the same elected officials under the old-but-new flag given the option. In practice, the amendment banned thousands of defeated rebels from holding office, but very few were ever prosecuted for their roles in secession. 

Most often, the former Confederates either did not run for office or had their eligibility reinstated under the Amnesty Act of 1872. (The amendment allows the ban to be lifted by a “vote of two-thirds of each House.”) Nevertheless, there are a handful of cases in which former Confederates were denied various offices without criminal convictions. In fact, it seems that criminal convictions were the exception rather than the rule. In several cases, courts determined in civil cases that the offenders were ineligible, but in other cases, Congress refused to seat ineligible election winners without a court order. (All of these cases are cited in the CREW link.)

Not all of the 14th Amendment bans were Confederates. Victor Berger was one of the rare instances in which the 14th Amendment was applied to a convicted politician. Berger was a socialist convicted under the Espionage Act during World War I. The House of Representatives refused to seat him initially but relented after his conviction was overturned in 1921. 

The most recent case was Couy Griffin, who was convicted of trespass for his actions on January 6. Griffin was removed from his post as county commissioner in New Mexico under the 14th Amendment. His ban was upheld by the state supreme court

As I discussed in my post detailing the news of the ruling, there is some debate over whether the 14th Amendment applies to the president. The Colorado court tackled the issue head-on and concluded that it does. 

The ruling notes that in the plain language of the time, the presidency would be considered an office of the United States, noting that “dictionaries from the time of the Fourteenth Amendment’s ratification define ‘office’ as a ‘particular duty, charge or trust conferred by public authority, and for a public purpose,’ that is ‘undertaken by… authority from government or those who administer it.’” The ruling also cites a litany of historical evidence. 

In a quote from the recent Heller decision authored by Antonin Scalia, the Colorado ruling opines, “When interpreting the Constitution, we prefer a phrase’s normal and ordinary usage over ‘secret or technical meanings that would not have been known to ordinary citizens in the founding generation.’”

The ruling also confirms the validity of the use of the January 6 Commission report as evidence against the former president and affirms that Donald Trump did engage in insurrection. The term itself is not defined in law, but the court decided a single definition of the word is not necessary, “rather, it suffices for us to conclude that any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.”

I like the simple definition that the ruling attributes to Trump’s counsel, which acknowledged that an insurrection is “more than a riot but less than a rebellion.”

The court then cites evidence that Trump laid the groundwork for claims of fraud long before his loss and summoned his supporters to Washington for what he knew was a potentially violent demonstration. He then exhorted the crowd with the words, “If you don’t fight like hell, you’re not going to have a country anymore.” 

After the violence began, the court’s summary continues, “President Trump ignored pleas to intervene and instead called on Senators, urging them to help delay the electoral count, which is what the mob, upon President Trump’s exhortations, was also trying to achieve. And President Trump took no action to put an end to the violence. To the contrary, as mentioned above, when told that the mob was chanting, ‘Hang Mike Pence,’ President Trump responded that perhaps the Vice President deserved to be hanged. President Trump also rejected pleas from House Republican Leader Kevin McCarthy, imploring him to tell his supporters to leave the Capitol, stating, ‘Well, Kevin, I guess these people are more upset about the election than you are.’”

The majority of the court agreed, “We conclude that the foregoing evidence, the great bulk of which was undisputed at trial, established that President Trump engaged in insurrection. President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary. Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”

Colorado also found that since “President Trump intended that his speech would result in the use of violence or lawless action on January 6 to prevent the peaceful transfer of power,” his speech is not protected by the First Amendment. The court examined Trump’s speech at the Stop the Steal rally and found that it failed the Brandenburg tests crafted by the Supreme Court to determine when inflammatory speech crosses the line to incitement. 

Even though Colorado’s Supreme Court is composed entirely of justices appointed by Democrats, the reasoning in the case is such that it should be appreciated by originalists and textualists. Indeed, I kept noticing points that referred back to the conservative justices that currently sit on the US Supreme Court such as the Scalia quote and a reference to a ruling by former Colorado judge, Neil Gorsuch. (“As then-Judge Gorsuch recognized in Hassan, it is ‘a state’s legitimate interest in protecting the integrity and practical functioning of the political process’ that ‘permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.’”) This ruling was obviously written with an audience of conservative jurists in mind. 

The Colorado court clearly expects the Supreme Court to review their work. The decision explains what is to happen next:

The Secretary may not list President Trump’s name on the 2024 presidential primary ballot, nor may she count any write-in votes cast for him. See § 1-7-114(2), C.R.S. (2023) (“A vote for a write-in candidate shall not be counted unless that candidate is qualified to hold the office 133 for which the elector’s vote was cast.”). But we stay our ruling until January 4, 2024 (the day before the Secretary’s deadline to certify the content of the presidential primary ballot). If review is sought in the Supreme Court before the stay expires, it shall remain in place, and the Secretary will continue to be required to include President Trump’s name on the 2024 presidential primary ballot until the receipt of any order or mandate from the Supreme Court. 

In other words, the ball is in the Supreme Court’s hands. If the US Supreme Court takes the case, then the stay remains in effect and Trump will be listed on the ballot. If the Supreme Court refuses to hear the case, the stay expires on January 4. Donald Trump’s name will not appear on the Colorado ballot, and write-in votes for him will not be counted. 

If the US Supreme Court does take the case, what happens will probably depend on the Court’s decision. If the Court rules in Trump’s favor then he will be on the ballot as normal. The big question mark involves what will happen if the US Supreme Court upholds Colorado’s ruling. We could end up in a situation where Trump is not eligible but his name still appears on the ballot. At this point, we also don’t know whether Trump would be ineligible nationally or whether the Court would restrict its ruling to Colorado (although I don’t know why they would limit the reach of their ruling in this case). 

The situation might be similar to the 2016 Republican primary when I voted early for Marco Rubio. By the time Election Day came in my state, he had already dropped out of the race. My presidential primary vote was more-or-less wasted that year. Potential Trump voters might do well to wait until the last day to cast their ballots this year as well. Or better yet, just vote for a candidate whose eligibility is not in question. 

For years, I’ve heard Republicans say that America is a republic, not a democracy. In truth, both those labels fit along with several others. If we want to nail it down, constitutional democratic republic is probably the most accurate. 

But the point is that we aren’t a pure democracy where the majority rules. We a nation of laws, and one of those laws says that if you take an oath of office and then “engage in insurrection or rebellion against the same, or given aid or comfort to the enemies” then you don’t get to be part of American government anymore. 

I don’t know how the Supreme Court will rule on this case (although I’m pretty sure that it will rule), but if it decides that Donald Trump is ineligible, that is not an assault on democracy. It will have followed the clear intent of the framers of the 14th Amendment. Still, if anyone thinks it’s a slam dunk, I’d point out that Colorado’s Democratic appointees split 4-3.

Ruling Donald Trump ineligible will require significant moral courage (as well as physical courage given the tendency of Trump’s supporters to become violent), but it’s the right call. The law is clear. 

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As an aside, I want to comment on the irony of Trump’s eligibility being in doubt. I’m old enough to remember that Trump made political hay during the Obama Administration with birth certificate conspiracy theories and questions about Barack Obama’s eligibility. That Trump now has a much greater chance of being kicked off the ballot than Obama ever did is rich. 

To go further, no less than three of the justices that will decide The Former Guy’s fate are his own appointees. Yet Gorsuch, Kavanaugh, and Barrett have not hesitated to rule against their benefactor in the past. Part of the reason that we have reached this point is that the Supreme Court helped to shoot down Trump’s appeals to overturn the election in the courts. 

If you like irony, this is richly ironic. And hilarious. 

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14A TRACKER: Lawfare blog has a tracker that shows the status of 14th Amendment challenges around the country. The tracker currently shows cases pending in 13 states.

TRUMP SEEKS TO DISQUALIFY DESANTIS: Hat tip to Erick Erickson for pointing out on Threads that Trump’s main Super PAC filed an ethics complaint against DeSantis last spring that would remove the Florida governor and (wait for it) disqualify him from holding future office. This revelation undercuts MAGA claims of concern about the democratic process, and the complaint has already been dismissed.

ALL TRUMP, ALL THE TIME: The current Supreme Court term is shaping up to be heavy on Trump. In addition, to the Colorado Trump Ballot Ban, Special Counsel Jack Smith has asked the Court to expedite a ruling on whether former presidents have immunity from prosecution. There may be more to come. 

DROP DEAD: I thought I’d take a moment to explain my headline yesterday since some readers may not recognize the reference. In 1975, New York City was in a financial crisis and was looking for a federal bailout. President Ford opposed the idea of a bailout in a speech, leading the New York Daily News to run with the headline, “Ford to City, Drop Dead,” which was not a direct quote. The phrase became a classic, however, and ultimately New York did get its (or the taxpayers’ to be exact) money.

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