Tweet Share Share Comment The Supreme Court’s decision reversing Colorado’s choice to remove Donald Trump from the ballot, the judgment of which was joined by all nine justices, was obviously correct. What’s not obvious is why so many thought the court would—or should—go the other way.
Colorado had removed Trump from the ballot based on Section 3 of the 14th Amendment. That clause disqualifies certain insurrectionists from holding certain federal and state offices. The issue the court resolved, unanimously, is whether states have the power to enforce that provision against a federal officer or candidate. Every justice agreed that they don’t.
What the justices did not agree upon was how the federal government could proceed in its enforcement of Section 3. All agreed—as they must—that a federal statute would do it. All could not agree about whether a statute is required. Five justices have now ruled that a statute is required; four justices effectively dissented from that view. This was not the time, these four insisted, to address a question not raised or argued in the case before it. The better practice, they demanded, was to wait till the issue presented itself and resolve that issue then.
That is ordinarily the correct procedure. But it is a good thing that the court went beyond ordinary procedure in this case, because a move that some Democrats were considering for disqualifying Trump would have been a disaster.
That move would try to bar Trump on Jan. 6, 2025: Congress’ job, this argument goes, is to “count” electoral votes to determine a winner. But Congress can’t count any vote for a candidate not qualified to be president. So, Congress can’t count the votes for Donald Trump, this view has it, because he is an obvious insurrectionist.
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This idea is wrong in its conception; the court has now effectively ruled it wrong as a matter of law.
It was wrong in its conception because Congress’ job is not to adjudicate whether the candidate whose votes they are counting is qualified. The only basis the Electoral Count Reform Act gives for excluding an electoral vote for a candidate is that the electoral vote was not “regularly given.” Though the legislative history of that 2022 amendment suggested that this included a judgment about whether the candidate was qualified, the language of the statute refers to the regularity of the vote, not to the candidate. And although there is just one historical example of Congress deciding whether it could count the vote of an unqualified candidate—in 1872 Horace Greeley died between Election Day and Electors Day; 63 of his 66 electors voted for someone else, and three stuck with the dead candidate; the House, by a single vote, rejected those three votes, but the Senate overwhelmingly voted to count them—the Constitution does not make Congress the judge of the states’ presidential elections. That power is vested in the states.
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The court has now quashed any potential objection to counting votes for the insurrectionist, Donald Trump (assuming that Congress listens to the court). Instead, on the court’s ruling, to invoke Section 3 in a way that would affect anyone’s legal rights or qualification, you must first point to a statute that Congress has passed enforcing that provision.
Justice Sonia Sotomayor vigorously criticized this rule in a concurring opinion joined by Justices Elena Kagan and Ketanji Brown Jackson. “All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) ‘are self-executing,’ ” she insisted, “meaning that they do not depend on legislation.”
But that statement is flatly false. Section 2 of the 14th Amendment—which directs that “when the right to vote … is denied to any of the male inhabitants of [a] State … the basis of representation therein shall be reduced”—is plainly not self-executing. No one believes that a court has the power to direct that the apportionment within a state be reduced because that court believes that election laws in the state have effectively “denied” male voters the vote. The same is likely true of Section 4, and certainly Section 5. The majority has not created “a special rule for the insurrection disability in Section 3,” as Sotomayor charges. It has simply concluded that Section 3 is more like Section 2 (or Section 4, or Section 5, for that matter) than Section 1.
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Although some very smart and reliable analysts, citing the progressive concurrence’s claim that “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office,” have argued that the court’s opinion effectively neuters Section 3, I disagree. There is a statute on the books—18 U.S.C. §2383—that criminalizes insurrection. The penalty for that crime is disqualification from federal office. And while the court did describe the need for Congress to ensure that any procedure it establishes be congruent and proportional, there’s no reason to believe that a criminal statute, which affords a defendant the maximum procedural protection known within our system of law, wouldn’t satisfy that requirement.
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The rule the Supreme Court has left us with is thus this: No state can, pursuant to Section 3, exclude a potential federal officer from office; and the only way the federal government can exclude a potential federal officer is through the application of an appropriate congressionally passed statute. Congress has indeed passed an appropriate insurrection statute; prosecutors could use it; but apparently, even though Trump’s insurrection is obvious to all, it isn’t obvious enough to be enforced by a jury in the District of Columbia against Donald Trump.
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Read More The puzzle for me is not this rule. The puzzle is that anyone doubted it. Is this Trump derangement syndrome? Because I should have thought that this rule, but for Trump, would have been embraced by all.
The idea that any state judge could declare a presidential candidate an “insurrectionist,” and thereby exclude him or her from the ballot, is wrong. Obviously, there needs to be a regular procedure to make that determination, and obviously, there can’t be 51 different procedures in all the jurisdictions that send electoral votes to Congress. So, obviously, this is not a matter for the states; it is a matter for the federal government.
It seems to me equally obvious that at the federal level, the way such a rule would be “enforced” was precisely how Section 5 of the 14th Amendment said it should be “enforced”—through a law passed by Congress. The idea that any federal judge, absent a statute, could have the power to declare a candidate an “insurrectionist” is equally wrong. And even more wrong is the notion that Congress, on Jan. 6, would have the power to adjudicate whether someone was an “insurrectionist.” Some of this country’s smartest and best lawyers, especially but not exclusively on the left, have worked themselves into a tizzy about an idea that in calmer times none would have embraced.
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I get the motivation. The threat of Trump’s election is existential. But this fillip of litigation has just given Trump’s campaign a new boost of energy: “See,” he can argue, “they were so crazy that even the liberal Supreme Court justices shot them down.” And that argument is correct: This idea was wrong when birthed from the law professors’ pens; it was wrong when funded by anti-Trump super PACs; and it was wrong when pursued in the state court of Colorado. If there were an action to be pursued here, it would be the prosecution of Donald Trump under §2383. And if you think to yourself, That would have been too difficult, then maybe also think this: If, with the protections of due process, you don’t believe that Donald Trump would be deemed an insurrectionist, then maybe it isn’t quite right to try to declare him one on the cheap. To borrow (and remix) a line from Kagan, here the rule of law should rule. And that’s precisely the rule the Supreme Court has now given us. Rather than bash the court for its obviously correct judgment, maybe we should reflect a bit more carefully on how a campaign against this existential threat will be won: not in the courts, but at the ballot box.
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