February 23, 2024
Trump v. Anderson Presidential Ballot Case: SCOTUS Must Do Its Job to Protect the United States
The Fourteenth Amendment, Section Three states, “No person shall be a [federal or state official] who, having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against [the government].” Given a textualist read and borrowing from the ordinary rules of statutory interpretation, the plain meaning seems clear.
At the time of its ratification back in 1868, the United States was emerging from a deadly Civil War which killed 620,000 Americans. Back then, everyone knew who the Amendment covered: former Confederates. They were leaders like former Confederate President Jefferson Davis and General Robert E. Lee to name the obvious. It included those confederate soldiers and others who supported the Confederacy in other ways but who previously held sworn federal or state governmental office. Union politicians did not want Confederates taking over what was admittedly a fragile nation. Fast-forward one hundred and fifty-six years, and history seems to repeat itself.
Most everyone knows who participated in the January 6th insurrection aimed at overturning the 2020 election. Citizens watched the attack on the Capital on television with their own eyes. Hours upon hours of the uprising was captured on video. Senators, Congressmembers, staff, and police became direct victims of the violence. Over a thousand people have been charged, convicted, or sentenced to incarceration for what happened that day.
Many of the direct victims have spoken publicly against the events and those involved, including as to former President Trump’s involvement. Hundreds of the criminal defendants have gone on record to blame the former President for inciting them to participate. This includes the ‘Proud Boys,’ a known far-right, neo-fascist militant organization that promotes and engages in political violence, who the former President asked to “stand back and stand by,” during the 2020 presidential debates.
The former President is a defendant in several criminal prosecutions, two of which are tied to the fateful events of January 6th. Within a week of the attack, the former President had been accused of “responsibility” for the insurrection and that his “rhetoric crossed a line” by former political loyalists. Within an hour of the conclusion of the former President ’s related impeachment trial, Congressional leadership stated on the record, “Former President Trump’s actions preceding the riot were a disgraceful, disgraceful dereliction of duty . . . There’s no question, none, that President Trump is practically and morally responsible for provoking the events of the day.”
Not only does this put into question the former President’s character and fitness to be President as well as his willingness to uphold the Constitution, it also gives credence to the criminal charges handed down by grand juries against him. The former President is now alleged to be a felon who, among other things, attempted to invalidate the votes cast by American citizens as is their constitutional right, and who looks more like a criminal than a qualified Presidential candidate. The reasons for keeping the former President off the 2024 ballot are more than compelling; they seem obvious.
Shockingly, despite all this, there is disagreement in the legal community as to whether this should disqualify the former President, even temporarily, from being placed on any primary ballot or the 2024 Presidential election ballot. For those opposing application of Section Three to the former President, the argument is technical with little to no explanation of how an alleged felon who attempted to violate the constitutional rights of our citizens should be in any public office let alone the office of the Presidency.
The disagreement focuses on: whether Section Three is enforceable without congressional implementing legislation; whether the office of the President is covered by Section Three; whether an insurrection occurred; what conduct qualifies as engaging in an insurrection; and, what due process is required under Section Three, if any. The amicus brief of Professor Mark Graber submitted to the Colorado Supreme Court is instructive as to these issues as it provides the historical and legal framework supporting application of Section Three to the former President, and takes head on academia that try to exclude the application of Section Three to the former President. The four opinions in the Colorado Supreme Court decision and the ruling of the Secretary of State of Maine discuss these issues addressed by the Graber amicus brief. Non-lawyer historians have also filed an amicus brief to aid the Court in understanding the historical context of the Amendment in support of its application to the former President.
Still, at the recent oral arguments before the Supreme Court in Trump v. Anderson, the Court seemed fixated on the idea that the Colorado decision to remove the Former President from its ballot would in effect bind the other forty-nine states. This seemed to miss the mark as it is the former President’s conduct detailed above which had that effect. The Court seemed more interested in finding a reason not to exercise its responsibility to interpret and apply the law rather than to give effect to the purpose and plain language of the Amendment.
Further, besides the factual record and the historical record, there are other compelling reasons to believe the former President should not be allowed to be on the ballot of any state in 2024, and which would comport with the plain meaning of Section Three, that are receiving little to no attention in the debate and the oral argument before the Court.
First, like the political environment of 1868, what is at stake is our democracy. What is not at stake is the former President’s “life and limb.” It is not at stake until his criminal cases go to trial, whenever that might be. What is at stake is whether the Court will let an alleged, potentially convicted, felon be President of the United States, a position that would let him subvert the rule of law. Nowhere in the Amendment is there language limiting its application to the people and events of the 1860s, exempting the office of the President, as some argue. If it did, the amendment would say so.
Second, the former President deserves his day in court to prove his innocence as to whether his acts criminally contributed to the events of January 6th. However, under the self-executing language of Section Three, the former President should not be on the ballot of any state unless by an act of Congress removing the disqualification as stated in Section Three.
Third, justice moves too slowly to both afford a criminal defendant due process and still achieve resolution before the election, which is to the country’s benefit, in this particular instance. That pace could result in a criminally charged but not yet convicted former President returning to the highest office to the detriment of the country. The Supreme Court is a court of equity and it should act accordingly.
The language of Section Three protects the country from what the “Second Founders” wanted to protect us from: those who attack the government being in government. If “no person is above the law” means something, the Supreme Court should affirm the Colorado Supreme Court and remove the former President from all ballots.
Colorado is not to blame here; the former President’s conduct is. If the Court finds differently, this would let a federal officeholder potentially avoid both federal and state prosecution. This would hardly seem like what the “Framers of the Second Founding” would have wanted when drafting an amendment to protect the country from those who participate in or are involved in a violent uprising against the government. The state courts have done their job; it’s time for the Supreme Court justices to do theirs.
Jim Saranteas is a practicing attorney with over twenty years of experience at the trial and appellate levels in civil litigation. His accomplishments include successful arguments and decisions before, among others, the Illinois Supreme Court. In 2012, the Loyola University Chicago School of Law’s Board of Governors chose him for its prestigious St. Bellarmine Award in recognition for his distinguished contributions to the legal community. He was both an adjunct professor and moot court coach in appellate advocacy for Loyola Law. This year, Saranteas is assisting Duke Law’s Moot Court Board as a volunteer appellate advocacy coach. Saranteas received his J.D. from the Loyola University Chicago School of Law, and his B.A. in Economics & Business Administration from Knox College.