News first broke last September that two highly conservative law professors argued that Donald J. Trump was no longer eligible to run for president because he was directly involved in the Jan. 6 insurrection at the U.S. Capitol. Under Section 3 of the 14th Amendment, he was no longer qualified as a presidential candidate.
Section 3 reads in full: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
That same month, I contended in these pages that the professors were wrong, that voters, not judges or secretaries of state, should decide elections. I still believe so, though this puts me at odds with one of the nation’s leading and highly respected constitutional law experts, Harvard Professor Emeritus of Law Laurence H. Tribe, who, with a colleague, applauded Maine Secretary of State Shenna Bellows’ decision with an essay in the Boston Globe: She showed how “a fearless public official exercises her delegated state authority in our Constitution’s intricate federal system.”
Now two states — Colorado by its supreme court, and Maine by its secretary of state — have ruled that Trump may not appear on the primary ballot in their states. Their decisions are stayed because the Supreme Court has now fast-tracked an appeal, ordering oral arguments on Feb. 8. The case is Trump v. Anderson; both Trump and Anderson have filed petitions (Trump also asked the court to weigh in on the Maine ineligibility decision).
State courts in Michigan and Minnesota have rejected such challenges. A group in Massachusetts has filed a similar complaint with the Massachusetts Ballot Law Commission, though Secretary of State William F. Galvin has said that Trump would appear on the ballot in the commonwealth no matter the outcome.
It’s important to point out several crucial elements in the Trump petition before the Supreme Court.
First, the Colorado case was brought by a group of Republican voters, not Democrats, though one resigned from the Republican Party. The Trump petition specifically points out that “the respondents in this case include six individuals eligible to vote in Colorado’s Republican presidential primary (the “Anderson litigants”), who sued Colorado Secretary of State Jena Griswold in state district court, claiming that Section 3 establishes “a constitutional limitation on who can run for president.”
Trump supporters, including Fox News, claim that it’s all a Democratic plot, that President Joe Biden and the Democratic Party are behind the attack on Trump’s eligibility. But the facts speak for themselves: The challengers are Republicans, not Democrats.
Second, the Trump petition consistently refers to “President Trump,” not former President Trump. Not only does it point out that he is the leading contender for the Republican presidential nomination, but continues the Trump lie that the 2020 election was stolen. “In 2020, President Trump received more than 74 million votes nationally, and more than 1.3 million votes in Colorado alone, to be re-elected as President of the United States.”
It seems to me that if Trump were re-elected in 2020, as the petition suggests, he is ineligible for office. The 22nd Amendment limits presidents to two terms. His second term would end Jan. 20, 2025.
Third, the petition argues that the judiciary is the wrong forum to resolve the issues raised here, that Congress alone has the authority to determine a candidate’s eligibility. The reason is that laws concerning national elections must be consistent throughout the U.S. Unfortunately, the Constitution’s election clause leaves it to the states to determine “times, places, and manner of holding elections” (Article I).
Fourth, and perhaps most interestingly, the petition declares that Section 3 does not apply to the president because he is not “an officer” of the U.S. who has taken an oath to support the Constitution. But Article II specifically lays out the presidential oath: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” Period.
Finally, the petition concludes that the events on Jan. 6, 2020, at the Capitol do not qualify as an insurrection: “In the context of the history of violent American political protests, Jan. 6 was not an insurrection, and thus no justification for invoking Section 3. Moreover, nothing that President Trump did ‘engaged’ in ‘insurrection.’” The petition states that Trump’s call at the White House Ellipse on that day to his supporters was merely figurative: “We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.”
If this is a First Amendment free speech right, then it is the duty of the courts to determine whether it crossed the line to incitement to violence (Brandenburg v. Ohio, 1969). Not Congress.
In any event, I have not changed my mind about Trump appearing on state ballots for the presidency. Meantime, the Anderson respondents have also filed their response with the Supreme Court. More on that next time.
Jack Fruchtman, who lives in Aquinnah, is preparing a fourth edition of his book, “The Supreme Court and Constitutional Law.”
