New “Voting Booth” podcast, hosted by John Fortier and Don Palmer.
When Congress convenes to count electoral votes on January 6, 2025, it will face intense pressure. If the Supreme Court rejects Colorado’s effort to bar Donald Trump from the primary ballot, its path seems likely to leave the door open for Congress to act, in some fashion at some time. Rick H. has valiantly argued here and elsewhere that courts should foreclose the possibility of future meddling, however they choose to do so; and it’s the gist of the Foley-Ginsberg-Hasen brief in Trump v. Anderson, too.
But. Supposing the Court does not close the door.Continue reading On January 6, 2025
Brook Thomas in Slate:
Oral arguments in the Supreme Court for Donald Trump v. Norma Anderson last week exposed a historical issue that none of the excellent amicus briefs by historians anticipated. Briefs led by Jill Lepore and Vernon Burton convincingly show that the framers of Section 3 of the 14th Amendment would have intended to make Donald Trump ineligible for the office of president. But the Colorado case is about eligibility for the ballot, not for office. The framers of Section 3 would not have considered that question because in 1866, ballots as we know them today did not exist.
That historical anomaly will make it easy for the Supreme Court to rule against Colorado. But if it does, it will punt on the more important question of Trump’s eligibility for office.
Understanding the full history here is critical. Official ballots printed by each state, listing the names of all candidates qualified to run, came into existence only with the adoption of the secret ballot later in the 19th century. Prior to that time, no one had to qualify to appear on a ballot. Political parties, not states, printed them with only their candidates’ names. Party officials gave them to voters, who placed them in a ballot box. If voters wanted, they could create their own ballot and write in any candidate they preferred. State officials then tallied the ballots. The votes for people ineligible for office were simply not tallied. Those who felt that their votes had been incorrectly thrown out by local officials had to appeal to state officials or the courts….
Professor Marty Lederman has significantly expanded his analysis of the Anderson v. Celebrezze issue in Trump v. Anderson over at Balkinization, here. As ELB readers may recall, I flagged the Anderson issue back in October, and my briefing in this case has offered some hesitant suggestions to think about the framing (without coming down on one side or another). Professor Lederman offers a much more fulsome defense of this legal hook as the best way to decide the case, which results in reversal of the Colorado Supreme Court. (Indeed, at oral argument yesterday, Justice Kagan read from Anderson v. Celebrezze on the bench.) He points to the burdens on Colorado’s voters, and on the state and national parties, for the removal of a candidate’s name from the ballot. That is in stark contrast, he notes, to candidates who are indisputably ineligible.
He also makes this point on the Colorado Secretary of State’s justifications of the state’s interest:
Colorado Secretary of State Griswold, in her brief, flags two additional possible state objectives. First, she writes (p.26) that an exclusion of Trump from the ballot “ensures voters are not disenfranchised by voting for candidates who are ineligible for office,” which “allows voters to accurately weigh their choices before casting a vote.” This rationale is problematic for at least three reasons. First, it’s not a justification that the decision-maker, the Colorado Supreme Court, relied upon. Second, it assumes that Trump is ineligible just because the Colorado Supreme Court decided that he is—which presumes the answer to the question that other actors would have to eventually determine if Trump were to actually be prevented from taking the oath of office. Third, if the state were worried that its voters will be ignorant of the mere possibility that other actors will (as Colorado cannot) prevent Trump from taking office or will remove him from office, it can address that problem by educating voters about the possibility rather than by paternalistically preventing them from choosing to vote for Trump with full knowledge of the risks.
Secretary Griswold also writes (id.) that “perhaps most importantly,” such a ballot exclusion “avoids the turmoil of an ineligible candidate winning an election for an office that the candidate is constitutionally barred from holding.” Again, this isn’t a justification that the Colorado Supreme Court relied upon. Moreover, it’s hard to see how Trump’s exclusion from the ballot would serve to “avoid” any turmoil of the sort Griswold describes, because the Republican Party will nominate Trump anyway, and because whether he’s prevented from entering office will depend on the decisions of others (voters, electors, Congress, etc.)—in other words, Colorado’s actions here won’t do much to affect that prospect, whereas they will cause serious harms to the fundamental constitutional rights of Trump supporters and the Republican Party (and possibly cause turmoil of its own making, as well).
The Court seemed to be grappling with these concepts, and in particular the second point to the first point raised here: that is, “it assumes that Trump is ineligible just because the Colorado Supreme Court decided that he is—which presumes the answer to the question that other actors would have to eventually determine if Trump were to actually be prevented from taking the oath of office.” The Secretary tended to frame the question as to whether the state has the power to exclude an insurrectionist from the ballot; but the better framing is whether the state has the power to ascertain whether the candidate is an insurrectionist, and, if so, keep the candidate off the ballot. Relatedly, the statements at oral argument that federalism “messiness” (probably one of the worst words the Secretary could have used at oral argument) means that states can continue to do their own things until some other federal actor steps in–or until the Supreme Court is asked to, and tasked with, resolving factual and legal disputes among states, suggests the state interest in being the first mover is much lower than in other cases (e.g., undisputed eligibility).
The whole post is worth reading after yesterday’s argument, and it’s another reminder that this case might look quite different if litigated through an election law lens than the Section 3 framing it’s received for months.
One more wrinkle, and this was an argument floated repeatedly by Justice Barrett at oral argument that Professor Lederman sharply notes:
It’s entirely possible, I suppose, that the Court might announce a broader, structural “federalism” limitation on the power of states to use their ballot regulations to exclude some or all federal candidates on eligibility grounds (or perhaps only on Section 3 grounds?), and in so doing invoke Anderson v. Celebrezze and other election law cases without necessarily framing the decision specifically in First Amendment/voting rights terms. Justice Barrett, in particular, hinted at such federalism constraints by invoking analogies to M’Clung v. Silliman (1821) (state courts can’t issue writs of mandamus against federal officials) and Tarble’s Case (1871) (a state judge lacks jurisdiction to issue a writ of habeas corpus for the discharge of a person held by a federal official). As I wrote in this post, citing M’Clung, it’s common ground that a state lacks legal authority to actually enjoin a disqualified federal official from holding office, or to remove him or her from such office; that a state court couldn’t issue an injunction to prohibit someone from taking federal office or to order that person to vacate the office (or order another federal actor to remove the allegedly ineligible person); and that state police can’t arrest someone purporting to hold a federal office (e.g., a Senator, a Representative in the House, a civil or military officer in the federal executive branch, a federal judge, or … a President or Vice-President) on the ground that the state has determined that that person is acting in derogation of Section 3 or some other constitutional limitation. The Court might conceivably hold that a state also can’t accomplish similar results by indirection by the simple expedient of excluding a potential federal officer from a ballot for a federal election.
Democratic alarm over third-party challengers spoiling President Biden’s reelection has been growing in recent weeks, prompting a new push both inside the party and among allied outside groups to step up their efforts fighting back.
The Democratic National Committee hired a new communications adviser last month to counter the third-party candidates, while outside groups working for Biden’s election have been having discussions about a new organization that could coordinate about the wide range of threats.
A recent five-way national poll by Quinnipiac University that named Biden, former president Donald Trump, attorney Robert F. Kennedy Jr., scholar Cornel West and activist Jill Stein showed the combined third-party candidates drawing nearly 1 in 5 voters. A separate effort, by the bipartisan group No Labels, continues to move forward in its search for candidates that could challenge the major-party duopoly.
That polling, combined with increased activism on the left in reaction to Israel’s war in Gaza, has provided a boost to outsiders who are traveling the country in an uphill battle to gain ballot access. Kennedy is seeking to establish a new We the People party with candidates who can run downballot of him in some states, while West has launched a less-well-funded effort to create the Justice for All party, and Stein has sought to expand the reach of the Green Party.
[This live blog is concluded. Stand by for thoughts on the argument.]
Today the Supreme Court hears oral argument in Trump v. Anderson. The first thing I’ll be listening for is whether Trump’s lawyer gets any traction with the hyper-technical argument that the president is not an “officer of the United States,” which if successful would render Trump not subject to disqualification under Section 3 of the 14th Amendment. I explained here and here why the argument appears weak, but Trump has put most of his briefing into this argument.
Everyone I know expects Trump to win because it would be politically monumental for the Court to remove a major, popular candidate, but seeing the doctrinal way to get there is hard.
It’s going to be a long argument—expect it to be over two hours and perhaps as long as three hours.
Arguments should start momentarily, and Trump’s lawyer Jonathan Mitchell will be up first.
Here are arguments:Continue reading Rick Hasen Live Blog of Oral Arguments in Trump Disqualification Case at Supreme Court (Updates Complete)
I have written this article for Slate. It begins:
The Supreme Court will soon be under the microscope like it hasn’t been since it ended the disputed 2000 U.S. presidential election in Bush v. Gore, as it considers not one but now two major cases that each could strongly influence whether Donald Trump will become president again. One of the major criticisms from the left of the court’s opinion in Bush was that it was a “one day only” ticket to hand George W. Bush the presidency without establishing a legal precedent to apply to other cases. And yet Trump is making similar arguments in both of his cases coming before the court, arguing for a kind of exceptionalism that would help Trump, and only Trump, regain power and stay out of jail. If the court cares about its legitimacy and its sagging public opinion, it should not embrace Trump exceptionalism no matter how it otherwise decides these cases….
Just about everyone who wishes to run for president has served in an earlier office and taken an oath to support the Constitution. Joe Biden, for example, was a senator, among other things, before becoming president. In his reply brief, Trump admits he is arguing for an exception that likely would apply only to Trump and to no one else: “Each of our 46 presidents, except George Washington and Donald Trump, would be covered by section 3 because they held a previous job listed in the amendment.” In other words, if the court accepts Trump’s primary argument, it won’t affect the meaning of Section 3 for any candidates running for president except as to Donald Trump.
Trump has made similar exceptionalist argument in the criminal case for election subversion filed by special counsel Jack Smith in federal district court in D.C. That case was supposed to go to trial in early March, but Trump took a special appeal to the United States Court of Appeals for the D.C. Circuit, putting trial preparations on hold. Trump is arguing that he is immune from criminal prosecution for any official act he did as president and that his attempted election subversion was an official act….
Whatever the court does, it needs to be guided by the principle that like cases should be treated alike, and no person is above the law. The surest way for the court to lose more respect in the public’s eye is if it creates a rule that helps Donald Trump and only Donald Trump.
On the heels of some arguments raised by Marty Lederman and challenged by Richard Bernstein, I wanted to weigh in on Professor Lederman’s side–and in doing so, turn to agree with Mr. Bernstein’s sharp observation the Moore v. Harper issue of the Legislature Thereof Clause is likely legally meritless and shouldn’t receive any real attention from the Supreme Court.Continue reading Some thoughts on state power to conduct presidential primaries (and why the Moore v. Harper claim may really be legally meritless)
In my recent rundown of arguments raised in Trump v. Anderson, I noted that the Legislature Thereof Clause argument–that the state court in Colorado botched the interpretation of state law so badly that it mangled the legislature’s preferences (an open suggestion after Moore v. Harper)–seemed the least likely ground for the Supreme Court’s consideration. I noted Trump’s brief is internally inconsistent on this point: while Part V of Trump’s brief is dedicated to the Legislature Thereof Clause, footnote 2 argues, “A ruling that reverses the Colorado Supreme Court while remaining agnostic on President Trump’s eligibility under section 3 will only delay the ballot-disqualification fight, and there is no shortage of legislators determined to use section 3 as a cudgel to bar President Trump from the general-election ballot or from taking office if this Court leaves any wiggle room for them to do so.” (If that’s the strategy, it’s not clear why Trump even included Part V in his brief.)
But the Colorado Secretary of State may have helped revitalize the issue. In a motion for divided oral argument, the Secretary argued, “Among the issues Petitioner Trump presents in his brief are (1) whether Section 3 of the 14th Amendment precludes Colorado from excluding unqualified candidates from its presidential primary ballot and (2) whether the Colorado Supreme Court violated the Electors Clause, and (3) whether this Court should defer to the Colorado Supreme Court’s interpretation of Colorado’s Election Code. These issues implicate Colorado’s—and indeed many states’—specific state law procedures for determining a presidential candidate’s eligibility to be placed on the state’s presidential primary ballot.”
The Supreme Court granted the motion to enlarge and divide oral argument. In my judgment, this is likely good news for Trump.
First, the Secretary specifically wants to focus on (1), about this election law-related component of the proceedings. That, as I mentioned in my recent rundown, is likely Trump’s best chance of success (a prediction sure to be go wrong, of course!).
Second, the Secretary specifically wants to focus on (2) and (3), the issues after Moore v. Harper about when state courts go “too far” construing state law. I thought this would be a poor ground for reversal, but now the Secretary is specifically asking for extra time to address the issue, and the Court has agreed. It sets up one of the best opportunities to expand the scope of what the Court meant in Part V of Moore v. Harper (to the chagrin of many amici).Continue reading Did the Colorado Secretary of State help revitalize the Moore v. Harper issue ahead of the Trump v. Anderson oral argument?
I have long treated Trump v. Anderson (and related cases) as an election law case first, and as a separate substantive constitutional law (or Section 3) case second. I’ve long had this view on these qualifications cases, stretching back a decade, when I was looking at the natural born citizen cases with Barack Obama, John McCain, and Ted Cruz. There is no question that these disputes are about ballot access. And Trump v. Anderson has the potential to be the most significant ballot access case in over 30 years.
That said, it’s been astonishing, to me, at least, that we have seen very little effort for this case to be litigated primarily as an election law case. (For instance, we’ve seen essentially no conversation about the Anderson-Burdick test here.) But it seems increasingly likely, to me, that if the Supreme Court rules in Trump’s favor (and by if, the likelihood seems to be declining), it will be on an election law ground related to ballot access rather than a substantive Section 3 analysis.Continue reading Trump v. Anderson: the election law case that wasn’t (but might be)
The following is a guest post from Wendy Weiser and Tom Wolf of the Brennan Center:
At the end of his merits brief in Trump v. Anderson, Trump argues that the Colorado Supreme Court violated the federal Electors Clause when it barred him from the state’s presidential primary ballot. The argument is easy to miss: It’s the fifth of the brief’s five major arguments and only about four pages long, adding to its tacked-on, long-shot feel. It’s radical nonetheless. Trump is effectively trying to relitigate Moore v. Harper—which the U.S. Supreme Court decided just last term—via a call to the Justices to override a state high court’s straightforward interpretation of its own state’s statutory election code.
As regular ELB readers and Court watchers know, Moore affirmed that the U.S. Constitution’s Elections Clause doesn’t give state legislatures carte blanche to set the rules for federal elections. Instead, they’re bound by the same state law systems of checks and balances that bind them when they make all other kinds of rules.
Trump is asking the Court to use Moore to undo the Colorado Supreme Court’s rulings on state statutory law. His ostensible hook is Moore’s language holding out the possibility of federal review when a state court “transgress[es] the ordinary bounds of judicial review such that [it] arrogate[s] to [itself] the power vested in state legislatures to regulate federal elections.” Of course, the facts underlying Trump v. Anderson – an alleged insurrection by a former president and current presidential candidate – and the underlying Fourteenth Amendment claims to bar him from the ballot are extraordinary. But there’s nothing extraordinary about the Colorado high court’s decision-making process on the state law points that draw Trump’s fire (concerning the duties of the secretary of state regarding candidate qualifications): It’s all standard statutory interpretation, using canons of construction and other rules of thumb that are part of every court’s toolkit.
The gist of Trump’s argument is that Moore transformed the U.S. Supreme Court into a super-court with the power to review de novo all state court rulings on state law matters concerning federal elections.
Of course, that’s not what Moore did. To the contrary, in affirming that state law checks-and-balances apply to state legislatures, Moore emphasized the importance of state court review and reasserted the supremacy of state courts on matters of state law within our federalist system. The Supreme Court made clear that courts doing the work courts ordinarily do is simply the constitutional status quo and shouldn’t raise Elections Clause concerns for federal courts. To the extent that Moore gives federal courts anything to police, it’s only extraordinary behavior that amounts to a violation of the judicial role. That’s an extremely narrow aperture for federal intervention into state law disputes, if it’s any at all. Moore just isn’t the blank check for de novo federal court review of state court rulings that Trump wants it to be.
It also can’t be. A legion of amicus briefs filed in Moore v. Harper really hammered home that any ruling that would strip away state court checks on state legislative activity would wreak havoc with the elections system. For a sampling, see briefs from folks like Rick, Ben Ginsberg, the League of Women Voters, bipartisan groups of election officials, and our Brennan Center team. The dangers described in these briefs would become very real if the Court adopted Trump’s Electors Clause theory in Anderson; it’s just a zombie iteration of the so-called “independent state legislature theory.”
We don’t think the Court is going to head down the state law route to resolve Anderson. And—as we said in the amicus brief we filed in the case with our partners Protect Democracy, Campaign Legal Center, and the League of Women Voters and our law firm counsel, Jenner & Block—we don’t take a position on how the Court should ultimately decide, or for whom. But ahead of this year’s elections, we think it’s important to beat back any attempts to revive the misguided and dangerous independent state legislature theory. We cannot afford the chaos that would ensue.
Thoughtful Marty Lederman blog post, responding in part (and disagreeing with) the argument raised in the amicus brief I filed with Ned Foley and Ben Ginsberg in the case.