*Published with the generous permission of Teri Kanefield. Read all of her writing here.
By Teri Kanefield
The Supreme Court will consider whether Colorado can remove Trump from the ballot under section 3 of the Fourteenth Amendment. Oral arguments are set for February 8 with briefs due beginning on January 18.
If you listen to certain commentators, you’ll think this is an easy issue.
In law school, you learn to see both sides of the argument. This is particularly important for defense lawyers, whose job is to read the indictment and scrutinize the prosecutor's case looking for weakness. Think of defense lawyers as would-be party-spoilers.
With that intro, let’s get started.
Can individual states keep Trump off the ballot under Section 3 of the 14th Amendment?
The 14th Amendment, added to the Constitution after the Civil War, includes this provision:
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 provision was intended to keep Confederates out of the federal government, but is not limited to Confederates. We know that because the word “confederate” doesn’t appear. It’s a general provision applicable to those who incite an insurrection.
In 1869, the Chief Justice Salmon P. Chase issued conflicting opinions about Section 3. First he said that it wasn’t self-executing and then he said it was. (In this context, Self-executing means that you don’t need federal legislation to enforce the provision.)
For the sake of argument, let’s assume that section 3 is self-executing and no federal legislation is needed to enforce the provision. (The Supreme Court may find otherwise).
Immediately after the Civil War, during the Reconstruction Era, federal prosecutors brought civil actions in court to oust officials linked to the Confederacy. In a few cases, Congress took action to refuse to seat Members. In other words, section 3 was used to prevent people who had won election from taking office.
These challenges ended with Congress enacted the Amnesty Act in 1872, forgiving former Confederates.
Question #1: Does the 14th Amendment bar someone from appearing on a ballot?
Look at this sentence, which appears at the end of section 3:
But Congress may by a vote of two-thirds of each House, remove such disability.
In other words, even if a person did engage in an insurrection (or gave aid and comfort to insurrectionists) under the 14th Amendment, Congress has the power to remove that disability.
It seems to me that the fact that this provision exists implies that even if someone engaged in an insurrection, they could run for office under the 14th Amendment and hope that Congress will remove the disability.
In other words, a decent argument can be made that the 14th Amendment, by its very terms, cannot bar someone from running for office and therefore, cannot keep a person off the ballot.
Trump made that argument in his brief. (Click here and scroll to page 31.) It’s easy to make fun of the stupid parts of Trump’s filings, but it seems to me that particular argument wasn’t stupid.
I am not saying Trump will win on this. I am saying it is not a stupid argument. In fact, I think it has merit.
But Teri! What about Hassan v. Colorado?
In Hassan v. Colorado, a guy named Abdul Karim Hassan was a naturalized citizen who wanted to run for president. The problem, of course, is that the Constitution says you have to be born in the United States to run for president. After the Colorado secretary of state told Hassan that he can’t be on the ballot, he sued alleging that the Fourteenth Amendment privileges and immunity clause and equal protection clause means that he can run for president.
In other words, he argued that the Fourteenth Amendment privileges and immunities and equal protection clauses supersedes the Constitutional requirement that a person must be born here.
The Supreme Court said nope: If you’re not born here, you can’t be president. The Supreme Court then sided with Colorado and held that Colorado had the right to protect the integrity of its elections by keeping someone off the ballot who clearly is not eligible under the Constitution.
The difference is that section 3 offers a mechanism for Congress to remove the disability of engaging in an insurrection or giving aid and comfort to an insurrectionist, while the Constitution does not offer a mechanism for removing the “born here” requirement.
Given that section 3 allows for the removal of the disability, it is not clear to me that Section 3 applies to who can run for office. It applies to who can hold office. This means that Section 3, by its own terms, cannot keep Trump off the ballot.
Maine and Colorado applied state law as well as Section 3
The situation gets more complicated because both Maine and Colorado reached their decisions under a mix of state law and section 3 of the Fourteenth Amendment.
States can enact their own laws. The Supreme Court steps in only if the law runs afoul of the Constitution.
The Colorado Supreme Court, in reaching its decision that Trump was not qualified to be president and therefore not qualified to be on the ballot, said this:
“. . . Trump is disqualified from holding the office of the President under Section Three of the Fourteenth Amendment to the Constitution. Because he is disqualified, it would be a wrongful act under the Election Code for the Colorado Secretary of State to list him as a candidate on the presidential primary ballot.”
(Incidentally, the Colorado courts applied the clear and convincing standard of proof, which strikes me as the correct choice.)
Here is what the Maine secretary of state said:
Under Maine law, when I qualified Mr. Trump for the ballot, any registered voter had the right to challenge that qualification. Five voters did so, including two former Republican state senators. And then I was required under the statute, under the law, to hold a hearing and issue a decision, and do so within a very compressed timeline. So this wasn’t something I initiated, but it’s something that’s required under Maine election law.
California elected to keep Trump on the ballot. California Lt. Gov. Eleni Kounalakis sent a letter to Secretary of State Dr. Shirley Weber on Dec. 20 calling for Trump to be removed from the ballot. She refused and announced that Trump remains on the ballot. As far as I know, she hasn’t explained her reasons.
The deep red states have not weighed in, but I think we can assume that, if asked, they would say Trump is qualified, and they would get there by defining “insurrection” and “engaged in” in a manner that wouldn’t apply to Trump’s behavior on January 6.
So, can states come to different conclusions?
As one of my readers said on Mastodon, allowing different states to come to different conclusions about whether Trump is qualified to be president is not the same as different states having different election procedures. Two different ways of conducting an election can both be acceptable. But allowing different states to come to different conclusions about whether Trump is qualified to be president under section 3 is like finding that “the cat is both dead and not dead.”
In other words, even if states can reach their own conclusions about whether Trump can appear on their ballots, someone has to decide for the nation as a whole. After all, the provision that allows Congress to remove the “disability” assumes that someone has to decide whether the disability exists in the first place.
So? Who decides?
Stephanie P. Jones (a lawyer who you can read about here) asked a few questions on social media. You can read her questions here. Jones was one of the lead authors of the Congressional January 6 report, so she knows exactly what Trump did on January 6.
I spent some time thinking about her questions. If you read her questions, you’ll see that one issue she is getting at is: Who decides whether Trump incited an insurrection?
Here are a few approaches that do not work:
I assume that why the above do not work is self-explanatory. Due process means that there is a procedure for deciding, and rule of law means that the same procedures apply to everyone.
This comment came to me on social media:
The Supreme Court needs to tell us if Trump is eligible to be on the ballot under the 14th Amendment.
Here’s the problem with that: The Supreme Court is not a trier of fact. The Supreme Court decides questions of law.
But Teri! Can’t the Supreme Court just affirm Colorado’s fact-finding?
Here is how appellate courts (including the Supreme Court) operate:
The court of appeals does not receive additional evidence or hear witnesses. The court of appeals may review the factual findings made by the trial court or agency, but generally may overturn a decision on factual grounds only if the findings were “clearly erroneous.”
Two different states can come to different conclusions that are not “clearly erroneous,” for example, if they define “insurrection” differently.
But they can’t both be right. Trump can’t both be eligible under section 3 and not eligible under section 3.
In other words, two different conclusions can be not “clearly erronoeous,” particularly if they define “insurrection” different, but they can’t both be true. The cat can not be dead and not dead.
Someone has to decide for the entire nation.
So. first, we need a definition of “rebellion” and “insurrection” under the 14th Amendment
In 2018, I received numerous comments that went like this: “Trump need to be charged with treason. I read the Mueller Report that confirmed that Russia launched an attack on our election. The Mueller report established “links” between Russia and the Trump campaign.
We know Trump encouraged the Russians. “Russia, are you listening?” How is that not treason?”
The problem is how both the Supreme Court and Constitution have defined “treason.” The Constitution says this:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The “war” part has been construed by courts to mean that for a charge of treason to stick, there has to be a declared war and the person has to side with the enemy.
The founders make it difficult because they didn’t want “treason” thrown around as a weapon against political opponents.
The Constitution doesn’t define “insurrection” or “rebellion,” so we look for clues.
Clue #1: The Constitution gives the government authority for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” This implies that the Supreme Court can define “insurrection” or Congress can define “insurrection” subject to the Supreme Court’s approval.
Clue #2: Congress has passed the Insurrection Act, which provides for this:
Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.
Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.
From that definition, you might conclude that January 6 was an unlawful obstruction against the authority of Congress. The hitch is the “ordinary judicial proceedings.”
What does that mean? I don’t know, and reasonable minds can differ, but because the statute concerns when the militia can be called, it doesn’t help us here.
In other words, we don’t have an authoritative definition of “insurrection” or “rebellion.”
Defining a term like “insurrection” isn’t easy because defining the term too broadly will create a large enough net to capture people who haven’t actually engaged in an insurrection. On the other hand, defining the term too narrowly will let insurrectionists hold office.
If you watched right-wing news during the summer of 2020, you would think that liberals were burning down American cities. The protesters were not, in fact, burning down American cities, but “insurrection” has to be defined in a way that doesn’t include a protest turned violent.
Consider this hypothetical:
A protest in front of a state capitol becomes violent because troublemakers infiltrate. As a result, state legislators can’t go to work. A red state declares the protest an insurrection and accuses Biden of giving aid to the protesters because he has spoken approvingly of one of the organizations involved in the protest-turned-violent. The state then declares Biden ineligible for office under section 3 of the Fourteenth Amendment.
A definition of “insurrection” and offering “aid and comfort” cannot include the above hypothetical.
(People think the object of the game right now is to define “insurrection” and “aid and comfort” broadly enough so that Trump is included. But define these broadly enough, and you ensnare the innocent. This is what the liberals-suddenly-turned-tough-on-crime don’t forget.)
Okay, let’s suppose that the Supreme Court offers a brilliant definition of “insurrection” that includes what happened on January 6, but doesn’t allow section 3 to be weaponized against political enemies.
Someone still has to apply the facts to the law. Who? The Supreme Court? If so, how will the Supreme Court do this without weighing evidence? (Appellate courts do not weigh evidence.)
Obviously one state can’t decide for everyone.
So, who decides?
Congress? (Imagine Marjorie Taylor Greene and Jim Jordan in charge of the Congressional committee. Scratch that idea.)
What about the fact that a majority of Senators found that Trump incited an insurrection during his second impeachment trial? Should that be enough? (If so, imagine handing that power to 51 Senators. The moment the Republicans hold a slight majority in both houses, they can disqualify any Democrats they choose, particularly because the Supreme Court doesn’t have the authority to overturn the finding of a Senate trial.)
Should a criminal conviction be the determining factor?
Historically, a criminal conviction wasn’t necessary under section 3. Moreover, I think using a criminal conviction as the standard would be a terrible idea. I have seen juries do crazy things in criminal trials and I don’t think twelve random people should be able to make a finding of guilt that binds all the rest of us. Imagine this in a deep red state: “We, the jurors, find that the protests were an insurrection and Biden gave aid and comfort to the protesters, therefore, Biden is not eligible to run for office.” Does this mean he is barred from office unless 2/3 of both Houses remove the disability?
I think we can safely assume that in the current polarized environment, 2/3 of both Houses will never agree to anything.
That’s why we need a procedure for how section 3 is to be enforced. The question is: What should the procedure be?
I don’t know. Moreover, I do not know what the Supreme Court will do and frankly, neither does anyone else. I do, however, believe that the issues are not as simple and straightforward as some would have us believe.
The Spirit of Liberty
Learned Hand (that really was his name) has been called “the greatest American judge to never sit on the Supreme Court.” Among other things, he is famous for a speech he gave during World War II. The highlights are mine, but the entire passage is worth savoring:
We have gathered here to affirm a faith, a faith in a common purpose, a common conviction, a common devotion. Some of us have chosen America as the land of our adoption; the rest have come from those who did the same. For this reason we have some right to consider ourselves a picked group, a group of those who had the courage to break from the past and brave the dangers and the loneliness of a strange land.
What was the object that nerved us, or those who went before us, to this choice? We sought liberty; freedom from oppression, freedom from want, freedom to be ourselves. This we then sought; this we now believe that we are by way of winning.
What do we mean when we say that first of all we seek liberty? I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.
What then is the spirit of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest. And now in that spirit, that spirit of an America which has never been, and which may never be; nay, which never will be except as the conscience and courage of Americans create it; yet in the spirit of that America which lies hidden in some form in the aspirations of us all; in the spirit of that America for which our young men are at this moment fighting and dying; in that spirit of liberty and of America I ask you to rise and with me pledge our faith in the glorious destiny of our beloved country.
I think people’s biases are getting in the way when thinking about how the Colorado case should be decided. Whatever the Supreme Court does will create a rule going forward. That rule will apply to people we like as well as people we don’t like.
When Hand asks whether we rest our hopes too much upon the Constitution, laws, and courts, he is echoing James Madison in Federalist Paper #48, which you can read here. James Madison wrote Federalist Paper #48 in response to critics of the draft of the new Constitution who insisted that the three branches of government (Madison called them “departments”) must be entirely separated to prevent any one of them from encroaching on the power of the others.
Madison explained that the branches must be interconnected so that they can act as checks against each other.
He also said this about power in general: “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” He went on to say that inserting phrases in the Constitution designed to restrain would-be power-grabbers won’t actually restrain a power-grabber.
If Trump is kept off the ballot and, as a result, he is not the nominee–and if, instead, a Trump sycophant wins–that person will pardon Trump of federal crimes will give him any job he wants. (He can still be appointed if he is sitting in prison in Georgia, right?) He will, one way or another, retain power given the nature of the current GOP.
My point: Beware of falling into the trap of thinking that Section 3 is an easy solution to the rise of authoritarianism in the United States.
“The spirit of liberty is the spirit which is not too sure that it is right”
It is difficult to approach these issues with humility.
Everyone likes to be popular — even former defense lawyers (who are generally unpopular). I wish I could go on social media and tell everyone what they want to hear. It would be so much fun. I’d get lots of love and “likes.”
It would also be a lot easier. Pointing out hurdles and explaining sticky issues is difficult and time-consuming.
I don’t know what the Supreme Court will do. For that matter, I’m not completely sure what the Supreme Court should do.