by David Schoen
There are many reasons why the United States Supreme Court must overturn the Colorado Supreme Court’s decision holding that former President Trump is barred from the presidential ballot under Section 3 of the 14th Amendment, which purports to prohibit a person who has engaged in “insurrection” from holding office.
First, there are meritorious text-based reasons, including:
Whether the office of President is covered by Section 3, since it is not mentioned, and other office holders are. This argument draws on legislative history, which includes an earlier draft of Section 3 that included them and then deleted them, a discussion between two legislators indicating to some that some members intended to include them, and the rationale that the concern at the time was over confederate politicians seeking public office regionally and that this was not a real issue on the national level.
Whether a President is an “officer” subject to Sec. 3, as that term is used, with cases like U.S. v. Mouat and Free Enterprise Fund (1888 and 2010 cases, respectively) saying “officer” only refers to appointed officials, not elected officials, while other cases indicate otherwise.
Whether, under the logic of the 1995 Supreme Court decision in U.S. Term Limits, Inc. v. Thornton, the only qualifications for President that are qualifying or disqualifying are the criteria set out in Article 2, Sec. 1 (35 years old, 14 years a resident, natural-born citizen).
There is also the textual argument that the constitutional language at issue only bars an insurrectionist from holding office, not running for office. This is a textually sound argument, but not every textually available argument should be made by a good advocate. If this argument were to prevail and Trump wins the presidential election, in the blink of an eye, one blue state after another would initiate an action to bar him from holding office, and we would be back at square one with more partisan chaos.
There are many more fascinating arguments. But there is one legally sound approach to the matter that every civil libertarian should endorse and that, indeed, all parties of every political stripe should advocate if they care about the Constitution and especially about the 14th Amendment, due process, and the fundamental rights incorporated through the 14th Amendment.
Whether or not Section 3 is self-executing, there is no process or other provision that in any way comports with the fundamental concept of due process in stripping away vitally important rights from voters and candidates. For this reason alone, the Colorado decision cannot stand. In considering these important issues, we must always keep in mind the vital significance having an unimpeded right to vote holds in our democracy. As the Supreme Court reminded us in 1979, in Illinois Bd. Of Elections v. Socialist Workers Party, “It is beyond cavil that ‘voting is of the most fundamental significance under our constitutional structure.’” The following is a framework that ought to lead all to recognize that the Colorado decision must be overturned as a matter of civil rights.
The 14th Amendment Itself Requires Overturning the Colorado Decision
Section 3 of the 14th Amendment is triggered by a finding that the person at issue has engaged in “insurrection.” Such a person is then disqualified from holding office. Putting aside the textual and other arguments, consider these two things:
A. Section 5 of the 14th Amendment provides that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
B. Nothing in the language of Section 3 tells you who is to determine whether the target engaged in “insurrection,” what the burden of proof is to make such a finding sufficient to disqualify a person from holding office, what the elements are for “insurrection” under Sec. 3, in what forum and by what procedure is a determination of whether the person engaged in “insurrection” to be made, etc. There is no process or burden of proof mentioned anywhere. That is exactly the kind of arbitrary lack of due process the 14th Amendment was fundamentally intended to protect each of us against.
Griffin’s Case and Due Process
There has been much discussion lately about the 1869 decision by Supreme Court Justice Chase in Griffin’s case. In Griffin’s case, Justice Chase held that Section 3 is not self-executing, and therefore it cannot be applied without federal legislation in place to give it life—to make it “executing.” That is vitally important, but for anyone who cares about civil rights and due process, whether or not Section 3 is self-executing, using it here to bar President Trump should be offensive.
Whichever side one comes down on with respect to Griffin’s case, anyone approaching the question must ask how Section 3 is to be applied. There are three options:
Option 1. Griffin’s case is right; it is not self-executing, and Congress has never acted to make it “executing.” Therefore, Griffin’s case prevails, it cannot be applied here, and the Colorado decision must be overturned.
Option 2. Griffin’s case is right and it is not self-executing, but Congress has in fact acted to make it “executing,” and the federal legislation that reflects Congress’s action in this regard is the criminal insurrection statute 18 USC 2383, which criminalizes insurrection and, like Section 3, makes the prohibition against holding office one of the results of a conviction. It looks like the perfect answer to what Justice Chase thought was needed to give life to Section 3 and to be able to apply it. But:
A. Prosecutor Jack Smith had every incentive and motivation to charge 2383 against Trump, but he didn’t. He didn’t even present it to a grand jury and seek an indictment under a very low bar standard for returning an indictment (mere probable cause to believe he engaged in insurrection). And this is notwithstanding the so-called model memorandum prepared for the DOJ’s and the public’s consumption in July 2023 by Norm Eisen, Danya Perry, and others demanding an indictment for insurrection and arguing for it.
B. If Trump had been actually charged with insurrection under 2383, he would have the whole panoply of rights the 5th and 6th Amendments guarantee to any defendant, including due process of law, notice as to what elements have to be proven and what defenses apply, what Mens Rea is required, the right to a jury trial, a beyond a reasonable doubt burden of proof, the right to effective assistance of counsel, discovery rights, including the right to all exculpatory evidence, a public trial, and more—all incorporated through the 14th Amendment itself to apply to the States.
C. Our constitutional jurisprudence does not allow the state or federal government to strip away these 5th and 6th Amendment rights of a citizen or the fundamental 1st and 14th Amendment rights of voters without due process, and that includes basic notice of what the burden of proof will be and who is authorized to decide. Is it the non-lawyer SOS in Maine or a single elected judge in Colorado? We can’t circumvent the constitutional guarantees that would be provided if 2383 were charged by just proceeding under some arbitrary process and made-up rules.
Or,
Option 3. I believe Griffin’s case is right, and there cannot be any enforcement under Section 3 without federal legislation, but even if Griffin’s case is wrong and Section 3 is self-executing, that still leaves us with the problem that Section 3 provides us no process, no burden of proof, no notice of its elements, and fails to comport with any semblance of due process before depriving citizens of their fundamental constitutional rights. Everyone who cares about the integrity of our Constitution should agree that it is fundamentally wrong to take away constitutional rights as important as the right to stand for election and the rights of voters to cast their vote for a candidate of their choice without a standardized process that lays out the elements required to find “insurrection” within the meaning of Section 3, who is to decide it, by what burden of proof it has to be decided, and other fundamental rights that comprise due process in such a situation. And this is so no matter who the person at issue is. It is a matter of fundamental fairness.
The Right To Vote is Sacrosanct in Our Democracy
On top of all of this, are we really going to allow individual states to make dispositive electoral decisions like this with respect to a presidential election, notwithstanding the clear assertion in the 1983 landmark ballot access case, Anderson v. Celebrezze, that individual states have a much weaker interest in regulating national elections because their restrictions would be felt well beyond their borders, thereby potentially skewing the results for the whole country?
The United States Supreme Court has reiterated a constant refrain when it comes to the right to vote. In 1964, another period of unrest and polarization in this country, the Court wrote in Westbury v. Sanders, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live.” And that same year, it was emphasized in Reynolds v. Sims that “the right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government.”
The effort to keep Donald Trump off the ballot in various states around the country, spearheaded and funded by those obsessed with keeping him out of office at all costs and by all means, hearkens back to an unimaginably un-democratic assertion by New York Congressman Jerry Nadler, who, in urging Trump’s impeachment in 2019, said that we cannot rely on an election to achieve that result. In contrast to Mr. Nadler’s horribly un-American suggestion, Abraham Lincoln famously once said, “Elections belong to the people.” Between Nadler and Lincoln, I am firmly and unashamedly with Honest Abe. The Colorado decision would take a presidential election away from the people, and the Court must never let that happen.
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David Schoen is a contributor to American Greatness.
