It would take a sweeping legal ruling for the Supreme Court to effectively kick former President Donald Trump off the ballot in Colorado and elsewhere, say legal scholars who’ve analyzed the arguments set for Thursday in the case.
“In order for Trump to lose, he has to lose bigly. Or is it big league? He has to lose on everything,” said Josh Blackman, a professor at South Texas College of Law in Houston.
Blackman was part of a panel discussion Wednesday at The Heritage Foundation, parent organization of The Daily Signal, along with other lawyers analyzing the case of Trump v. Anderson.
Addressing some points made by other speakers, Blackman said the nation’s highest court would have to overcome major obstacles to uphold the Colorado Supreme Court’s Dec. 19 decision to bar Trump from the state’s primary ballot because of his role in the Capitol riot of Jan. 6, 2021.
“The court has to find, No. 1, that Colorado can enforce Section 3 [of the 14th Amendment to the U.S. Constitution]. No. 2, that the president is an ‘officer of the United States,’” Blackman said. “No. 3, there was an insurrection. No. 4, that Trump engaged in insurrection. No. 5, there is no First Amendment defense to whatever Trump did on Jan. 6. No. 6, the phrase ‘officer of the United States’ refers to the presidency.”
Colorado’s high court determined that Trump is disqualified from the state’s primary ballot because of the Capitol riot under the 14th Amendment, Section 3, which prohibits anyone who engaged in an insurrection from holding a civil office in the U.S. government.
“If Trump is correct on any one of those junctures, any one of those steps, then he is on the ballot,” Blackman said. “It would take an absolute and complete collapse of Trump’s legal team to lose everything. It’s possible. But he would have to lose every single human point.”
Here are answers to four big questions ahead of the oral arguments Thursday in the Trump ballot case.
1. To Whom Does Section 3 Apply?
The language of Section 3 of the 14th Amendment reads:
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.
Blackman is the co-author of a friend of the court brief filed at the U.S. Supreme Court. It contends that “civil officer,” referred to in Section 3, applies only to an appointed official or to someone who previously took an oath—not to the president or vice president. To back up that point, he referenced the Constitution’s appointments clause, commissions clause, impeachment clause, and oaths clause.
Further, Blackman noted in speaking of the Civil War-era provision, even Confederate President Jefferson Davis, as well as numerous Confederate politicians and military officials, previously had taken an oath to the U.S. Constitution in appointed or elected positions.
Trump is unique in history as someone whose only oath to the Constitution came as he was sworn in as president on Jan. 20, 2017.
“This is the ultimate off-ramp for the Supreme Court,” Blackman told the Heritage audience.
Section 3 might not even apply to the ballot, said Patrick Strawbridge, who filed an amicus brief in the case on behalf of the Republican National Committee.
“Relevant language with respect to former President Trump’s case prohibits any person from holding any office or military post in the United States,” Strawbridge said. “It doesn’t prevent someone from being nominated. It doesn’t prohibit someone from appearing on a ballot. … It doesn’t even prohibit someone from actually being elected.”
“It just prohibits someone from holding office,” he said. “Even setting aside all of the other arguments about whether Section 3 applies, there really is no textual basis to assume that a state official can determine the person will not appear on the ballot. The prohibition is on holding office.”
2. What’s Supreme Court Precedent?
Indiana Attorney General Todd Rokita, a Republican who also co-authored a brief for the high court, argued that neither the courts nor state officials can decide how to apply Section 3 of the 14th Amendment.
Rokita referred to an 1869 precedent in which Chief Justice Salmon Chase ruled in a case involving Cesar Griffin, convicted in a shooting case in Virginia. Griffin appealed to have the conviction voided because the judge in the case was a former Confederate official.
“Justice Salmon Chase took that very view a few months after the 14th Amendment was adopted. In the 1869 case of Griffin, several criminal defendants in Virginia challenged their sentences on the theory that the sentencing judge had once been a Confederate official and couldn’t hold office under Section 3,” Rokita said.
“But Justice Chase rejected that theory. … He said only Congress is able to provide for the proceedings necessary to ascertain which person Section 3 covers. There is evidence that Congress agreed with Justice Chase’s view. Key drafters of the amendment, such as [Rep.] Thaddeus Stevens, explained Section 3 will not execute itself.”
Stevens, a House Republican from Pennsylvania, was best known for leading the impeachment effort in 1868 against President Andrew Johnson.
3. Is Section 3 Still Relevant?
If the section of the 14th Amendment does cover Trump, it’s not clear that it is still relevant, since Congress twice voted to remove the barrier to office.
Section 3 is unique in specifying that Congress “may by a vote of two-thirds of each House, remove such disability” for holding office, noted Hans von Spakovsky, manager of the Election Law Reform Initiative at The Heritage Foundation.
Congress voted by majorities of two-thirds to do so in both 1872 and 1898.
“It specifically gave Congress the power to void Section 3 and basically remove it from the amendment. There is nothing like that anywhere else in the Constitution,” von Spakovsky said. “It makes sense that they put this in, because this section was put into the 14th Amendment by Republicans who controlled Congress, because they were angry that all these Confederate military officers and government officials were getting reelected to Congress.”
Acknowledging that the Trump ballot case provokes political divisions, von Spakovsky noted: “The most important thing for anyone in this situation to do is to divorce themselves from whether they like or don’t like Donald Trump.”
4. What Happens Jan. 6, 2025, If Supreme Court Punts?
There are grounds for the Supreme Court, led by Chief Justice John Roberts, to punt on the issue of Trump’s eligibility for the Colorado ballot, Blackman said.
Drawing on Chase’s Griffin precedent in 1869, the high court could determine that it’s a matter for Congress to decide. This effectively could allow Trump to remain on the ballot in Colorado and elsewhere, but leave a murky situation about whether the former president could be inaugurated if he wins the election.
“If the court accepts the Salmon Chase argument and says, ‘OK, states, you can’t do this, only Congress can do it,’ well, guess what happens on Jan. 6 of 2025?” Blackman asked rhetorically. “What happens if there are Democratic majorities in both houses, and they go to the Capitol and start counting votes.”
He then presented an almost dystopian scenario:
They go to Alabama, alphabetically. Someone objects that the vote isn’t ‘regularly given,’ language in the Electoral Count Act, because Donald Trump is disqualified.
They break up into respective houses. If a majority of the House and a majority of the Senate reject the vote, then the vote is not counted. Do you really believe if the Supreme Court punts on this issue, that the Democrats in Congress will say, ‘We are going to accept this sitting down?’ If Trump actually wins, they could disqualify him on Jan. 6. …
My fear is that if the court, a majority, takes this off-ramp and says Congress can do it, then you are going to let Congress do it. The problem is, this lingers on to Inauguration Day.
Have an opinion about this article? To sound off, please email [email protected], and we’ll consider publishing your edited remarks in our regular “We Hear You” feature. Remember to include the URL or headline of the article plus your name and town and/or state.