Back in 2015, I suggested that courts should proceed with “caution” when exercising review over qualifications disputes involving presidential candidates. Other entities are involved in the process, and the state legislature may not have empowered a court or some body to engage in rigorous review of qualifications. In these time sensitive election cases, complex and layered legal questions might not find adequate resolution.

Not so in Colorado. The trial court’s schedule for a five-day hearing beginning October 30 means clearing a series of complicated legal questions ahead of the complicated factual (and other legal) claims for the hearing. In some places, I’d pick at the edges of some of the court’s holdings under state law. But in other places, more fundamental errors arise–including an interpretation of the recently-enacted Electoral Count Reform Act.

As the court summarized one of Donald Trump’s arguments, “Intervenor Trump argues that the U.S. Constitution reserves exclusively to the U.S. Congress the decision as to whether a candidate is unqualified under Section 3 of the Fourteenth Amendment.”

As I’ve written, I think this view is wrong–that is, Congress is not “exclusively” the entity that evaluates qualifications, but one of several places, and it certainly has the power to judge qualifications. But, even if you think that’s wrong, there are three possible ways to construe Congress’s power to judge the qualifications of presidential candidates: Congress has exclusive power, Congress has non-exclusive power, or Congress has no power. And whether it’s non-exclusive power or no power, a political question doctrine claim fails.

One relevant factor in this battle is where Congress thinks this power resides. Specifically, what does Congress say under the Electoral Count Act? Does it suggest it holds the power to judge qualifications of presidential candidates?

The trial court evaluated the Electoral Count Reform Act, which did change the Electoral Count Act in several places. In several “natural born citizen” cases (cases I looked at in 2015 and 2016), courts noted that Congress has the power to adjudicate qualifications and that mechanisms for resolving disputes were left to the Electoral Count Act, which means courts should refrain from hearing the case. The Colorado trial court, however, found this:

Congress, however, amended 3 U.S.C. § 15 in 2022. As amended, 3 U.S.C. § 15(d)(2)(B)(ii) provides: “The only grounds for objections shall be as follows: (I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1). (II) The vote of one or more electors has not been regularly given.”

As such, it appears that Congress has disavowed any ability it once had to consider objections other than the two listed above—including any regarding the constitutional qualifications of the President-elect.

This is the first interpretation of the Electoral Count Reform Act I’ve seen from a court. And it is badly mistaken.

The court here makes two mistakes. First, the court fails to spend any effort at all interpreting the phrase “regularly given.” Second, the court makes the erroneous conclusion that the ECRA changed (or “disavowed”) something, when it is quite clear that Congress did not do so

To start, the phrase “regularly given” has long been understood to include objections over votes not given pursuant to law–including, somewhat contentiously, whether a candidate is qualified. It is literally the identical language from the old Electoral Count Act (indeed, in my testimony before the Senate on the ECRA, I praised the inclusion of consistent language as a “known commodity” but that simply offers “clarity” and “precision”). The new Act just has a predicate that the “only” objections are these two grounds, and it breaks them out as roman numerals. (As I mentioned earlier, some can disagree that the Constitution gives Congress the power to do this. But that means the ECA and ECRA both lacked power to judge qualifications. Nothing changed from the old to the new version there, either.)

Here’s a phrase from the old version: “When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; and no electoral vote or votes from any State which shall have been regularly given by electors whose appointment has been lawfully certified to according to section 6 of this title from which but one return has been received shall be rejected, but the two Houses concurrently may reject the vote or votes when they agree that such vote or votes have not been so regularly given by electors whose appointment has been so certified.” Much more complicated, yes. But, quite literally, the same terms.

The court makes no effort to compare the old text to the new, only to say that it “appears” to have “disavowed” the power. But the text makes no effort to “disavow” anything. It literally uses the same language.

The trial court appears to try to deprive Congress of any power to adjudicate the qualifications of presidential candidates to clear the brush . But there is a difference between Congress having a power and Congress having the exclusive power. The trial court here, however, disclaims that Congress holds any power.

These kinds of careless statements from courts in fraught election law cases can take a life of their own years later, as we saw in 2020. And, in fact, the court here wades through the previous natural born citizen cases from 2008, 2012, and 2016, noting some of the mire of the sloppy statements in those cases on the political question doctrine (e.g., the Colorado trial court here noted, “most of the cases concluding that the political question doctrine applies did so with very little analysis of what the constitutional provisions they rely on provide”). The notion that a court has now held that Congress intended to change the Electoral Count Act in a way that it certainly did not may well have unknown consequences in the years to come as litigants fight for an edge in future cases.

This court’s approach creates very real problems. Set aside a sloppy interpretation of a statute that imputes meaning to an act where no such meaning exists–a warning for future courts interpreting the Electoral Count Reform Act. Some members of Congress have already publicly acknowledged they would consider moving to disqualify Trump on January 6, 2025. And the court here offers a false prediction of the future–Congress will quite likely face this very real issue in 2025, and the court here blithely concludes that Congress has disavowed the power and, implicitly, that the judiciary will conclusively resolve this issue. It creates a false sense of security for what might come.

The proper approach would have been a line like this: “Regardless of whether the Electoral Count Act, as amended by the Electoral Count Reform Act, empowers Congress to judge the qualifications of presidential candidates, neither it nor the Twelfth Amendment purports to commit that responsibility exclusively in Congress.” As I wrote in 2015, ” the power of Congress to examine the qualifications of executive candidates is, at the very best, debatable, and certainly not exclusive.” That would have been entirely adequate in this case.

I hope I’m wrong and that stray errors like this do not get picked up in later litigation–or that the error is not significant enough for later attention. And I’m entirely sympathetic to the concerns that we should resolve these Section 3 claims as far in advance of the election as possible. I don’t know how this court will approach the rest of the Section 3 issues (beyond those already addressed). But there are costs to this approach to move as quickly as possible, especially in a complicated case like this one, with a great deal of brush to clear ahead of the merits. One hopes remarks like this get cleared up so they do not create more problems in the months to come.