Donald J. Trump v. Norma Anderson, et al.

Notable Items:

• Conflicting state outcomes .... The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record). [exactly the situation regarding third party candidates.]
• 2024-02-08: Anderson v. Griswold (2024) (Need everything)
• 2023-11-17: Anderson v. Griswold (2023) District Court Denver (Need everything)
• 2023-10-02: John Castro v. Donald Trump (2023) Certiorari denied. 11th Circuit and District Court records.
• William Baude & Michael Stokes Paulsen 2023: The Sweep and Force of Section Three
• Gerard Magliocca 2022: Background as Foreground: Section Three of the Fourteenth Amendment and January 6th
• 2021: Disloyalty & Disqualification: Reconstructing Section 3 of the Fourteenth Amendment
• Gerard Magliocca 2021: Amnesty and Section Three of the Fourteenth Amendment

Issue(s) Before the Court:

Petitioner's Claim(s):

Respondent's Claim(s):

Holding(s) and Disposition:

Material Facts:

• Last September, about six months before the March 5, 2024, Colorado primary election, four Republican and two unaffiliated Colorado voters filed a petition against former President Trump and Colorado Secretary of State Jena Griswold in Colorado state court.
• A full recounting of the facts is available below

Procedural History:

• A group of Colorado voters contends that Section 3 of the Fourteenth Amendment to the Constitution prohibits former President Donald J. Trump, ..., from becoming President again.
• After a five-day trial, the state District Court found that former President Trump had “engaged in insurrection” within the meaning of Section 3, but nonetheless denied the respondents’ petition.
• The court held that Section 3 did not apply because the Presidency, which Section 3 does not mention by name, is not an “office . . . under the United States” and the President is not an “officer of the United States” within the meaning of that provision.
• In December, the Colorado Supreme Court reversed in part and affirmed in part by a 4 to 3 vote.
• Reversing the District Court’s operative holding, the majority concluded that for purposes of Section 3, the Presidency is an office under the United States and the President is an officer of the United States.
• The court otherwise affirmed, holding
  • (1) that the Colorado Election Code permitted the respondents’ challenge based on Section 3;
  • (2) that Congress need not pass implementing legislation for disqualifications under Section 3 to attach;
  • (3) that the political question doctrine did not preclude judicial review of former President Trump’s eligibility;
  • (4) that the District Court did not abuse its discretion in admitting into evidence portions of a congressional Report on the events of January 6;
  • (5) that the District Court did not err in concluding that those events constituted an “insurrection” and that former President Trump “engaged in” that insurrection; and
  • (6) that former President Trump’s speech to the crowd that breached the Capitol on January 6 was not protected by the First Amendment.
• The Colorado Supreme Court accordingly ordered Secretary Griswold not to “list President Trump’s name on the 2024 presidential primary ballot” or “count any write-in votes cast for him.”
• Under the terms of the opinion of the Colorado Supreme Court, its ruling was automatically stayed pending this Court’s review.
• We granted former President Trump’s petition for certiorari, which raised a single question: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential pri- mary ballot?”

Rationale

Majority Opinion (xxx)

• But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates. [nor does section 3 deny the power of states to determine eligibility by determining place of birth and residency. "No person except a natural born Citizen ..." Article II.]
• “It would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office. [where is the power granted to determine nativity and residency?]
• The only other plausible constitutional sources of such a delegation are the Elections and Electors Clauses, which authorize States to conduct and regulate congressional and Presidential elections, respectively. But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. [clauses appear to delegate determination of eligibility, in accord with Articles I and II, to the states]
• Nor have the respondents identified any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment. [absent the need, there will be no examples.]
• ... state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that “the President ... represent[s] all the voters in the Nation.” [ see Hassan v. New Hampshire ]
• A full description of the rationale is available below

Barrett Concurrance in part.

• I join Parts I and II–B of the Court’s opinion. (skips Section 3 history)
• I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that.
• It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.

Sotomayor, Kagan, Jackson concurrance in judgement.

• In this case, the Court must decide whether Colorado may keep a Presidential candidate off the ballot on the ground that he is an oathbreaking insurrectionist and thus disqualified from holding federal office under Section 3 of the Fourteenth Amendment.
• They [five judges] decide novel constitutional questions to insulate this Court and petitioner from future controversy. Ante, at 13. Although only an individual State’s action is at issue here, the majority opines on which federal actors can enforce Section 3, and how they must do so. The majority announces that a disqualification for insurrection can occur only when Congress enacts a particular kind of legislation pursuant to Section 5 of the Fourteenth Amendment. In doing so, the majority shuts the door on other potential means of federal enforcement.
• I
• Section 3 marked the first time the Constitution placed substantive limits on a State’s authority to choose its own officials. Given that context, it would defy logic for Section 3 to give States new powers to determine who may hold the Presidency.
• That provides a secure and sufficient basis to resolve this case.
• The Court should have started and ended its opinion with this conclusion.
• II
• Yet the Court continues on to resolve questions not before us.
• Congress, the majority says, must enact legislation under Section 5 prescribing the procedures to “ ‘ “ascertain[ ] what particular individuals” ’ ” should be disqualified.
• Section 3 provides that when an oathbreaking insurrectionist is disqualified, “Congress may by a vote of two-thirds of each House, remove such disability.”
• It is hard to understand why the Constitution would require a congressional supermajority to remove a disqualification if a simple majority could nullify Section 3’s operation by repealing or declining to pass implementing legislation. [50% +1 to disqualify, 2/3rds to re-qualify. that's the majority position.]
• All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation. City of Boerne v. Flores, 521 U. S. 507, 524 (1997); see Civil Rights Cases, 109 U. S. 3, 20 (1883).
• Similarly, other constitutional rules of disqualification, like the two-term limit on the Presidency, do not require implementing legislation.
• It [the marjority] simply creates a special rule for the insurrection disability in Section 3.
• The majority, however, neglects to mention the Senator [Trumbull]’s view that “[i]t is the [F]ourteenth [A]mendment that prevents a person from holding office,” with the proposed legislation simply “affor[ding] a more efficient and speedy remedy” for effecting the disqualification. Cong. Globe, 41st Cong., 1st Sess., at 626–627.
• It [the majority] forecloses judicial enforcement of that provision, such as might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.
• The majority further holds that any legislation to enforce this provision must prescribe certain procedures “ ‘tailor[ed]’ ” to Section 3, ante, at 10, ruling out enforcement under general federal statutes requiring the government to comply with the law.
• By resolving these and other questions, the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.
• * * *
• The Court today needed to resolve only a single question: whether an individual State may keep a Presidential candidate found to have engaged in insurrection off its ballot.
• The majority resolves much more than the case before us.
• In a sensitive case crying out for judicial restraint, it [the majority] abandons that course.
• Today, the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.
• Because we would decide only the issue before us, we concur only in the judgment.

?? Dissent (??) (xxx)

Full Recounting of Facts

• Last September, about six months before the March 5, 2024, Colorado primary election, four Republican and two unaffiliated Colorado voters filed a petition against former President Trump and Colorado Secretary of State Jena Griswold in Colorado state court.
• A list of the material facts is available above

Majority Full Argument

• I
• See Material Facts
• See Procedural History
• II
• II A Section 3 history
• Section 3 of the Amendment ... was designed to help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War. [text does not limit application to former Conferates. Deliberately written in general terms "No person ... who ... having engaged in insurrection or rebellion ...."]
• Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualification from holding a wide array of offices—rather than by granting rights to all. [no need to grant. right/privilege spelled out for certain officers in Articles I, II, & III.]
• ... the Colorado Supreme Court also concluded that there must be some kind of “determination” that Section 3 applies to a particular person “before the disqualification holds meaning.”
• The Constitution empowers Congress to prescribe how those determinations should be made. The relevant provision is Section 5, which enables Congress, subject of course to judicial review, to pass “appropriate legislation” to “enforce” the Fourteenth Amendment. See City of Boerne v. Flores, 521 U. S. 507, 536 (1997).
• Congress’s Section 5 power is critical when it comes to Section 3.
• Sen. Trumbull noted that “notwithstanding [Section 3] ... hundreds of men [were] holding office” in violation of its terms. [less than a year after ratification]
• The enforcement mechanism Trumbull championed was later enacted as part of the Enforcement Act of 1870 .... [due to failure of states to enforce? states do enforce certain Article I provisions see Hassan v. New Hampshire]
• II B
• This case raises the question whether the States, in addition to Congress, may also enforce Section 3.
• We conclude that States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency. ["No person except a natural born Citizen ..." Article II. Determined by state in which the person is born. States determine.]
• But nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates. [nor does section 3 deny the power of states to determine eligibility by determining place of birth.]
• The terms of the Amendment speak only to enforcement by Congress, which enjoys power to enforce the Amendment through legislation pursuant to Section 5. [true for all Civil War Amendents. Provision to override recalcitrant states.]
• “It would be incongruous to read this particular Amendment as granting the States the power—silently no less—to disqualify a candidate for federal office. [no grant ... states determine if residency and birth requirements for federal office have been met.]
• The only other plausible constitutional sources of such a delegation are the Elections and Electors Clauses, which authorize States to conduct and regulate congressional and Presidential elections, respectively. But there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates. [clauses appear to delegate determination of eligibility, in accord with Articles I and II, to the states]
• Its final sentence empowers Congress to “remove” any Section 3 “disability” by a two-thirds vote of each house.
• But if States were free to enforce Section 3 by barring candidates from running in the first place, Congress would be forced to exercise its disability removal power before voting begins if it wished for its decision to have any effect on the current election cycle. [as it currently the case regarding residence and nativity.]
• Nor have the respondents identified any tradition of state enforcement of Section 3 against federal officeholders or candidates in the years following ratification of the Fourteenth Amendment. [absent the need, there will be no examples.]
• Such a lack of historical precedent is generally a “ ‘telling indication’ ” of a “ ‘severe constitutional problem’ ” with the asserted power. [but for lack of need]
• And it is an especially telling sign here, because as noted, States did disqualify persons from holding state offices following ratification of the Fourteenth Amendment. [note 3 "one example of state enforcement against a would-be federal officer", provides no example of state office.]
• Instead, it is Congress that has long given effect to Section 3 with respect to would-be or existing federal officeholders. Shortly after ratification of the Amendment, Congress enacted the Enforcement Act of 1870.
• Moreover, permitting state enforcement of Section 3 against federal officeholders and candidates would raise serious questions about the scope of that power.
• Section 3 .... bars persons from holding office after taking a qualifying oath and then engaging in insurrection or rebellion—nothing more.
• ... state enforcement might be argued to sweep more broadly than congressional enforcement could under our precedents. But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible. [Constitution grants states the power to determine how federal elections will be conducted, and districted. Congress does not have this power.]
• ... state-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that “the President ... represent[s] all the voters in the Nation.” [ see Hassan v. New Hampshire ]
• Conflicting state outcomes .... The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record). [exactly the situation regarding third party candidates.]
• The “patchwork” that would likely result from state enforcement would “sever the direct link that the Framers found so critical between the National Government and the people of the United States” as a whole. [exactly the situation regarding third party candidates.]
• An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times. [same as Congress acting on Section 3 during primary season]
• * * *
• For the reasons given, responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.
• The core of the rationale is available above