SCOTUS concerned by claim that states can disqualify Trump from voting as insurrectionist

Judging by last week’s oral arguments Trump vs. Andersonthe Supreme Court will reject claims that he was disqualified from running for president under Section 3 of the 14th Amendment because he “engaged in insurrection” by inciting the Capitol riot on January 6, 2021. The only real question is which of the various possible reasons will attract the majority of judges.

Section 3, which was intended to prevent former Confederates from returning to public office after the Civil War, states: “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 the 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 shall have given aid or comfort to his enemies. But the Congress may, by a vote of two-thirds of each House, remove such disability.”

In December, the Colorado Supreme Court ruled that Section 3 barred Trump from that state’s presidential primary. But the question of how to interpret and apply Section 3 in the context of a presidential election raises a number of questions that courts have not previously addressed. What got the most attention during Thursday’s oral arguments was whether states have the authority to enforce Section 3.

Justices Clarence Thomas and Brett Kavanaugh pointed to the lack of historical evidence that states can independently enforce Section 3. Jason Murray, the attorney representing Colorado voters who challenged Trump’s inclusion on the ballot, said he could offer only one example: In 1868, John H. Christy was elected congressman from Georgia, but Rufus Bullock, the state’s Republican governor, concluded that Christy had been disqualified under Section 3 and instead certified his opponent, John Wimpy, as winner. A House committee later found that Wimpy had also been disqualified because he had served in the Confederate Army and neither of them was seated.

Murray said it was “not surprising that there are few examples” because the electoral process was different back then: since voters either voted for a party or wrote in the name of a candidate, “there would be no process to determine before an election whether a candidate was qualified.” But Thomas was dissatisfied with that explanation. Since “there were still a plethora of Confederates around” in the 1870s, he said, there should be “at least a few examples of disqualified national candidates if your reading is correct.”

Kavanaugh echoed Thomas’ point, noting that the power Colorado asserts has been “dormant for 155 years.” The year after the 14th Amendment was ratified, he noted, Chief Judge Salmon P. Chase, as circuit judge for Virginia, ruled that Section 3 must be implemented through congressional action authorized by the Section 5 of the 14th Amendment. That means “Congress has the authority here, not the states,” Kavanaugh said. And in 1870, Congress passed the Enforcement Act, which aimed to implement the 14th Amendment by protecting voting rights. “There is no history to the contrary in that period,” Kavanaugh said, and “as Justice Thomas pointed out, there is no history to the contrary in all the years prior to this period in which states exercise that authority.” This suggests, he said, “an established understanding” that Chase was “essentially right.”

Chief Justice John Roberts noted that “the central purpose of the 14th Amendment was to limit state power.” The amendment states that states may not “abridge the privileges or immunities of citizens,” “deprive any person of life, liberty, or property, without due process of law,” or deny anyone “the equal protection of laws”. And Section 5 says, “Congress shall have power to enforce this article by appropriate legislation.” Given the wording and goals of the 14th Amendment, Roberts said, “that would not be the last place we would look for authorization for states, including Confederate states, to ‘regulate’ the presidential election process” by deciding which candidates are disqualified under Section 3? That position, he suggested, is “at war with the whole thrust of the 14th Amendment and very ahistorical.”

Justice Elena Kagan was also uncomfortable with the idea that “a single state should decide who becomes president of the United States.” The question of “whether a former president is disqualified for an insurrection to be president again,” she said, “sounds awfully national to me,” suggesting that “whatever means there is to enforce it” should “be federal, national.” .”

Justice Amy Coney Barrett shared Kagan’s concern. “You say we need to review the Colorado facts with ‘clear error’ as the standard of review,” she told Murray. “So we would be stuck… We are stuck with that record.” The deference that this approach would require, Barrett said, underscores “this point that Justice Kagan made” that “it just doesn’t seem like a calling from the state.”

Likewise, Justice Samuel Alito feared “a trickle-down effect” in which “the decision of a single judge whose factual findings are subject to deference, perhaps an elected judge, would potentially have an enormous effect on candidates running for president all over the country. .” Roberts raised the possibility that “a good number of states” could decide to reject Democratic as well as Republican candidates, meaning that “it will only be up to a handful of states to decide the presidential election,” which is “a rather discouraging consequence.”

Some justices have also questioned whether the president qualifies as “an officer of the United States” under Section 3. In the portion of Section 3 that refers to prior office holders, Justice Ketanji Brown Jackson noted, “you have a list, and ‘president’ is not there.” He suggested that it was unlikely that the Framers would have “smuggled in” that “high, significant and important office” via the “generic phrase” referring to “an officer of the United States”. Justice Neil Gorsuch noted that Article II instructs the president to commission “all officers of the United States,” which suggests that that category does not include the president.

By contrast, the question of whether the January 6 riot qualified as an “insurrection” and whether Trump “engaged” in it was barely raised. “For an insurrection, you need an organized, concerted effort to overthrow the United States government through violence,” Jonathan Mitchell, the lawyer representing Trump, said in response to a question from Jackson. “This was a riot. It was not an insurrection. The events were disgraceful, criminal, violent, all of those things, but they did not qualify as an insurrection as the term is used in Section 3.”

Murray, by contrast, opened his argument by placing Trump at the center of an insurrection. “We are here because, for the first time since the War of 1812, our nation’s Capitol was subjected to a violent assault,” he said. “For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power. By engaging in an insurrection against the Constitution, President Trump has disqualified himself from holding public office.” .

But that’s pretty much all on the topic, other than Kavanaugh’s allusion to the fact that Trump, despite facing numerous criminal charges, has never been charged with insurrection under 18 USC 2383. In addition to a possible prison sentence of up to 10 years, a conviction under that statute renders the defendant “incapable of holding any office in the United States.” If the concern is that “insurrectionists cannot hold federal office,” Kavanaugh told Murray, “there is a tool to ensure that this does not happen: namely, federal prosecution of insurrectionists.”

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