Ned Foley-Ben Ginsberg-Rick Hasen Amicus Brief Warns SCOTUS of Political Instability, Potential Violence, and Voter Disenfranchisement If It Avoids Deciding Merits in Trump Disqualification Case

Thanks to the excellent work of Michael Kimberly and Charles Seidell of the McDermott Firm, Ned Foley, Ben Ginsberg and I have filed this amicus brief supporting neither party in the Trump disqualification case at the Supreme Court. Below is part of the Introduction and an excerpt comparing the situation in 2020:

Amici often do not see eye to eye on matters of law or policy. But they join together in this brief to make a single, urgent point: A decision from this Court leaving unresolved the question of Donald Trump’s qualification to hold the Office of President of the United States under Section 3 of the Fourteenth Amendment until after the 2024 election would risk catastrophic political instability, chance disenfranchising millions of voters, and raise the possibility of public violence before, on, and after November 5, 2024. And the grounds for avoiding the merits are not credible: Colorado manifestly had the authority to determine Mr. Trump’s legal qualification for the office he seeks, and this Court has jurisdiction to review that federal-law decision on its merits. 

To punt on the merits would invite chaos while risking great damage to the Court’s reputation and to the Nation as a whole. The country is more polarized today than at any other time in living memory—certainly more than in December 2000, when this Court last decided a case with a direct impact on the outcome of a presidential election. Controversy over the 2020 election led millions of Americans to doubt the integrity of the electoral system and ultimately culminated in the storming of the U.S. Capitol on January 6, 2021. Political tensions have not eased in the time since. Quite the opposite: political discourse has stoked further public skepticism of the electoral system since January 2021. Amici thus file this brief, not only to demonstrate that the Court can reach the merits of Mr. Trump’s qualification under Section 3, but that it should do so, or else risk political instability not seen since the Civil War. 

The possible scenarios if the Court fails to resolve the Section 3 question once and for all are alarming. If Mr. Trump wins an electoral-vote majority, it is a virtual certainty that some Members of Congress will assert his disqualification under Section 3. That prospect alone will fan the flames of public conflict. But even worse for the political stability of the Nation is the prospect that Congress may actually vote in favor of his disqualification after he has apparently won election in the Electoral College. Neither Mr. Trump nor his supporters, whose votes effectively will have been discarded as void, are likely to take such a declaration lying down. 

Even if Mr. Trump did willingly stand aside, it is wholly unclear who would be inaugurated as President on January 20, 2025—would it be Mr. Trump’s running mate, pursuant to the Twentieth Amendment? Would it be Mr. Biden, pursuant to a Twelfth Amendment election in the House? Or would it be some alternate candidate thrown into the mix in the heat of the political battle? The chance that there would be no clear answer come Inauguration Day 2025—and that the country thereby would be thrown into a possibly catastrophic constitutional crisis—is disturbingly high. 

Amici have devoted their careers to the study and practice of election law, earning independent reputations as preeminent experts in the field. Although they often disagree on matters of policy and ideology, amici share a deep-seated conviction that free and fair elections bolster voter confidence and trust in the political process. Amici also share an expert understanding of the constitutional system for elections, which not only places responsibility for administering federal electoral contests first in the hands of the States, but also leaves an essential role for this Court “to say what the law is.” Marbury v. Madison, 5 U.S. 137, 177 (1803). …

Finally, it is worth contrasting the current situation with the aftermath of the 2000 election. As Florida conducted its recounts and litigation swirled, this Court initially returned the case to the Florida Supreme Court with the suggestion that it consider the question of whether Florida’s procedures were constitutional. Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000). This unanimous punt kept the Court temporarily on the sidelines as the recount process and litigation continued; depending upon how the recount went, it was conceivable that this Court would avoid weighing in. Alas that was not to be. Bush v. Gore, 531 U.S. 98 (2000). 

This time, however, kicking the can down the road would be far more fraught for the country. There is every reason to believe that disqualification challenges will continue to proliferate if this Court fails to give guidance. In the meantime, voters who cast their votes for Mr. Trump risk disenfranchisement for supporting a candidate who may later be held ineligible for office. Because they won’t get a do-over, these voters deserve to know now whether their ballots for Mr. Trump will be counted. 

Further, requiring Congress to take up the issue in an inherently political process, on the fourth anniversary of the U.S. Capitol riot, would be a tailor-made moment for chaos and instability. The pressure on Congress from all sides would be enormous, as would be the temptation to resolve the disqualification question not as a matter of the legal or factual merit, but as an exercise of political power. This Court stands between the potentially disastrous turmoil that would result and a comparatively peaceful election administered consistent with the Constitution and the rule of law. It should not let this opportunity to stave off political instability pass. 

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