Trump eligibility and the Anderson petition


In its Jan. 11 edition, my op-ed in The MV Times reviewed the Trump argument before the Supreme Court to allow him to appear on the Colorado primary ballot. To reiterate, the focus is on Section 3 of the 14th Amendment, which disqualifies a candidate for federal office if that person has “engaged in insurrection or rebellion against the [the U.S.], or given aid or comfort to the enemies thereof.”

On Dec. 19, the Colorado Supreme Court ruled by a narrow majority that Donald J. Trump was ineligible, because the trial court “found by ‘clear and convincing evidence’ that Trump was the ‘factual cause’ of the insurrection on Jan. 6, 2021, having intentionally incited the mob to violence in a desperate ploy to cling to power.” On Jan. 3, Trump asked the U.S. Supreme Court to overrule that decision.

Today, we analyze the arguments of the Republican primary voters who brought the case to court in the first place. As we shall see, the petition focuses on the constitutional issues, but ignores the political consequences of a decision to remove someone from the ballot. There is, in short, a grave distinction between politics, on the one hand, and constitutional principles, on the other.

The lead respondent, Norma Anderson, is a lifelong Republican and state legislative leader. She left the party in 2021 because, as she put it, “the Republicans nominated an oversexed playboy who has spent his entire career lying to people.” Joined by five other like-minded Republicans, her brief before the Supreme Court lists the reasons why the court should review the Colorado high court decision.

The first issue asks whether the court has jurisdiction to even rule on the case. This triggers an inquiry into the so-called “political question doctrine,” namely whether a dispute is better resolved by one of the elected political branches of government, like Congress, rather than the judiciary. The Anderson petition correctly argues that the courts are the appropriate forum because Section 3 notes at the end that Congress has a role: Congress may restore an ineligible candidate for election by a super-majority two-thirds vote in each house. But that comes at the end of the process. 

For now, the appropriate forum to work this out is the U.S. Supreme Court, to determine whether the Colorado Supreme Court got it right. If the justices decide they do not have jurisdiction to rule on the case, that will be the end of it: They could also hold that the Colorado Supreme Court overstepped its authority by delving into a purely political matter.

Second, the Anderson litigants correctly argue that Section 3 includes the presidency. The provision lists senators and representatives, but not the president, mentioning only “officers of the United States.” According to them, “the Constitution repeatedly refers to the presidency as an ‘office’ and requires the president to swear an ‘oath of office’ before assuming the execution of his ‘office.’” We refer to “the office of the president,” so even if the presidency is unenumerated in the provision, Section 3 logically covers it.

Third, the petition contends that there is a difference between a person “seeking” office, which is always permissible, and a person “assuming” office after an election, which is what Section 3 protects against if that person has engaged in insurrection against the U.S. This is the weakest part of the argument: If a person seeks office, then he or she must be allowed to run for that position. Otherwise, the very idea of “seeking office” is meaningless. The only way to seek an office is to appear on the ballot.

This is where constitutional and political issues collide. Even if the Colorado Supreme Court ruled that Trump “engaged in insurrection” by his words at the White House Ellipse on Jan. 6, 2021, it is a leap to say he is ineligible for office if he never did anything else except speak words of encouragement to his followers. To argue that Trump’s only recourse is to ask two-thirds of both houses of Congress to restore his eligibility does not overcome the political consequences of denying him a place on the ballot. By that time, it is too late.

A constitutional resolution of this dispute must give way to the political effect of denying a person a place on the ballot. I say this in light of the persuasive argument that the trial court made, that “Trump’s speech, when considered in context, ‘incited imminent lawless violence,’ and ‘was intended as, and was understood by the crowd as, a call to arms.’”

Politics differs from constitutional theory. A presidential election is purely political, and the people decide who occupies the Oval Office, not the judiciary. Yes, we do not have direct election of the president because of the Electoral College, but still the people have the right to go to the polls and cast a vote for the candidate of their choice. The Court has scheduled arguments on Feb. 8.


Jack Fruchtman, who lives in Aquinnah, is the author of “Hero or Villain? The Treason Trial of Aaron Burr,” which appeared in the 2019 book “Political Trials in an Age of Revolutions: Britain and North America, 1793-1848.”


  1. Mr. Fructman you are not quite correct. There actually is a difference between seeking office and being on a ballot. People who seek a federal office (or membership) by election but who are ineligible to occupy the position are routinely denied being on the ballot — such as anyone who doesn’t meet the age requirement specified in the constitution or who fails to the get number of required number of signatures.

    That doesn’t mean they can’t “seek the office”. They can still campaign, purchase advertising, give speeches, hold rallies and exhort their supporters to write-in their name on the ballot. They could be a member of a party; or not. They could even get the most votes!

    Regarding the timeliness issue. It simply isn’t relevant. Trump has known for 3 years that his insurrectionist actions of Jan. 6 2021 put him at risk. He’s had plenty of time to petition Congress.

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