Legal Docket: Ballot ban

NICK EICHER, HOST: It’s Monday morning, February 12th, 2024, and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Nick Eicher.

JENNY ROUGH, HOST: And I’m Jenny Rough. It’s time for Legal Docket. Our case today: Trump versus Anderson.

This one I reported from inside the court. But before I could get inside, I noticed the interest outside. Protesters had some opinions on Trump’s guilt.

PROTESTER: Trump is guilty! He’s criminal! Ninety-one indictments!

But the legal question at last week’s oral argument wasn’t a criminal one. In Trump versus Anderson the central question is whether states can bounce Trump from the ballot.

EICHER: It appears this year will mark Donald Trump’s fourth shot at the White House. You may not remember that Trump explored a run in the year 2000 as a Reform party candidate but dropped out. Sixteen years later he would run as a major-party candidate in 2016 and win, then ran again in 2020 and lost. And now he’s looking for a rematch with President Joe Biden. But this time, a group of voters has sued to try to stop him.

A group of six Colorado voters went to court and sought an order to remove Trump’s name from Colorado’s presidential primary ballot.

ROUGH: They argued he’s disqualified, because his role in the Capitol riot on January 6, 2021, makes him an insurrectionist.

The Colorado Supreme Court agreed and issued the order to remove his name.

Now the U.S. Supreme Court has taken up the case.

But before we get to the legal issues in the case, let’s hear from a couple people who attended the Trump rally on January 6th.

Euni Evensen was one of them.

EUNI EVENSEN: So it took me three hours. So from eight, nine, ten. So ten o’clock my turn came.

She waited in line for three hours to get through a metal detector so she could stand on the Ellipse. That’s the grassy, oval field that runs between the Washington Monument and the White House.

EICHER: Despite enormous TV screens, microphones, and amplified speakers, the crowd was so loud she could barely hear anything President Trump said. But she did catch this:

DONALD TRUMP: We’re going to walk down to the Capitol. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.

EVENSEN: That’s the word only I remember. He said peacefully walk.

What she didn’t hear was this:

TRUMP: And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore. So we’re going to walk down Pennsylvania Avenue. And we’re going to the Capitol.

ROUGH: The plaintiffs in this case, the group of voters, argue that was coded language for a call to insurrection.

But what happened that day made no sense to Evensen. She simply wanted to go to the Capitol and pray. So did Mary Mack. She was also there that day.

Mack often walked around the Capitol and prayed.

MARY MACK: We did it several times. We went to the Capitol and we did prayer walks around the Capitol. We pray really for this country and for this government. And for the leaders of our government.

EICHER: But on January 6th, Mack was sitting between the Lincoln and World War II Memorials by the Reflecting Pool with friends.

Euni Evensen got caught up in the march. When she got close to the Capitol, she heard a commotion. Behind her, a group of men in riot gear.

EVENSEN: Like bicycle helmet. Really strong. It’s all black. I just only hear, “Let’s go guys! Let’s go into the Capitol.”

ROUGH: She turned around to leave. But still got hit with tear gas.

EVENSEN: The smell was really bad. We could not open our eyes.

Mary Mack saw the smoke from her spot by the Reflecting Pool and also decided to leave.

Neither woman entered the Capitol building. But rioters did. They pushed through barriers. Vandalized property. Assaulted police officers. One woman who’d entered was shot dead by police. Meantime, Congress had convened for the duty to certify the votes of the electoral college for the next president. Instead, they had to abandon chambers.

Was this a full-blown insurrection?

EICHER: Colorado took the position that it was. And the state Supreme Court relied on the insurrection clause of the 14th Amendment of the U.S. Constitution to disqualify Trump.

So let’s turn our attention there.

Many high-profile cases touch on the 14th Amendment. We talk about it a lot on Legal Docket.

ROUGH: Yes, we do. Section 1 probably sounds familiar. That’s the due process clause and the equal protection clause.

But the 14th Amendment is long as constitutional amendments go. And that’s only a snippet.

This case centers on Section 3.

EICHER: That section disqualifies insurrectionists from holding political office. It was passed in the wake of the Civil War to bar former Confederates from getting back into the U.S. government.

ROUGH: But at oral argument, the Supreme Court barely touched on the issue of whether Trump engaged in insurrection.

Justice Ketanji Brown Jackson is the only one who asked directly about it.

Trump lawyer Jonathan Mitchell answered by saying Trump didn’t engage in any act that could plausibly be characterized as insurrection.

JONATHAN MITCHELL: For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence.

JACKSON: So the point is a chaotic effort to overthrow the government is not an insurrection?

MITCHELL: This was a riot. It was not an insurrection. The events were shameful, criminal, violent, all of those things, but it did not qualify as an insurrection.

EICHER: The court spent most of the morning on other arguments.

Three main ones.

First: Does Congress need to pass a law before states can disqualify a candidate under Section 3? Or can Colorado and other states enforce Section 3 on their own?

ROUGH: Trump’s attorney relied on a case from 1869 that said states had no role in enforcing Section 3 apart from congressional authorization. So, he argued, Congress has a greater role to play here that it hasn’t played.

EICHER: But Justice Sonia Sotomayor pointed out that that 19th Century precedent wasn’t a Supreme Court case. So it’s not binding precedent now.

JUSTICE SOTOMAYOR: Let’s just be very clear. It was a circuit court decision.

The authority to enforce Section 3 isn’t the only problem. Without a federal statute … there’s no clear process to determine whether someone is an insurrectionist. Justice Samuel Alito raised that concern.

JUSTICE SAMUEL ALITO: The trial court in Colorado thought it was proper to admit the January 6th report, and it also admitted the testimony of an expert. Another state court could reach an opposite conclusion ...

MITCHELL: Certainly.

Inconsistent rulings among states about what trial evidence to include or exclude could lead to disunity. Making Trump eligible to run in some states but not others.

And that’s issue one of three: enforcement and the role of Congress.

ROUGH: Issue two: what one of the justices called “the officer stuff.” This case is on a very fast track, and honestly, a little disorganized. Typically the justices dialogue with the lawyers. Here, Justice Elena Kagan asked Chief Justice John Roberts about the day’s agenda.

JUSTICE KAGAN: Will there be an opportunity to do officer stuff?

CHIEF JUSTICE JOHN ROBERTS: Absolutely! Absolutely! [Laughter]

The “officer stuff.” That’s number two.

Here’s the gist: Section 3 of the Fourteenth Amendment applies to insurrectionists who have taken an oath “as an officer of the United States.”

Remember these two words: officer of.

EICHER: The Colorado voters argue that the language applies to all government officials, including the president.

But Trump says it applies to only some of them. Here’s his lawyer Jonathan Mitchell again:

MITCHELL: The president is not an officer of the United States as that term is used throughout the Constitution. Officer of the United States refers only to appointed officials, and does not include elected officials.

ROUGH: Other provisions in the Constitution include the officer of phrase, and each time excludes the president.

Now there’s one more piece of this, and I’m going to take the risk of confusing you. But there is another phrase in Section 3 banning insurrectionists from holding any office under the United States. Not officer of. Office. Under.

The parties also dispute whether that ban covers presidents.

EICHER: Jenny, before we get to the third argument—and we’re almost done here—this is what I thought was one of the most interesting parts. And we talked about this before we went on the air, and I wanted you to include it. It sounded to me almost as if Trump’s attorney Mitchell was making arguments for his opponents.

ROUGH: I know! I was talking with other lawyers about this perhaps crazy tactic. Trump’s lawyer was very candid about the strengths and weaknesses of his own argument. Admitting that these legal issues aren’t black and white might endear him to the justices. Not a bad move.

EICHER: OK, sorry I veered off the road, but I thought it was a scenic detour.

Back on the highway: Again, three issues here. First was enforcement and the role of Congress. Second was the officer stuff. Third dealt with what qualifies a candidate and by extension disqualifies one.

ROUGH: Right. The Constitution sets out qualifications for office. For example: Age: A president must be at least 35 years old. [No problem this year, looks like]

Trump argued Colorado is trying to add a new qualification to be president. And it can’t do that.

EICHER: For this one, Trump’s side argued Section 3 only bans an insurrectionist from holding office, not running for it.

In other words, Colorado disqualified him too early!

ROUGH: Jason Murray argued for Colorado’s side. He stressed that the Constitution gives states the power to govern elections.

JASON MURRAY: The constitutional role of the states in running presidential elections. Under Article II and the Tenth Amendment, states have the power to ensure that their citizens' electoral votes are not wasted on a candidate who is constitutionally barred from holding office.

EICHER: Justice Clarence Thomas wanted to know what states have used the 14th Amendment to disqualify candidates? And when?

JUSTICE THOMAS: Do you have contemporaneous examples where the states disqualified national candidates, not its own candidates, but national candidates?

Murray struggled here. But he offered this:

MURRAY: We didn't have ballots in the same way back then. Candidates were either write-in or they were party ballots, so the states didn't run the ballots in the same way, and there wouldn't have been a process for determining before an election whether a candidate was qualified.

ROUGH: Murray said there would be no great debate in other circumstances. A state could take these names off the ballot:

MURRAY: If President Bush or Obama wanted to run for a third term.

So…

MURRAY: I don’t see why Section 3 should be treated any differently.

EICHER: But that led Justice Brett Kavanaugh to circle back to the first argument: policymakers stepping in here and making policy.

JUSTICE KAVANAUGH: Well when you look at Section 3 the term "insurrection" jumps out, and the question is, the questions are: What does that mean? How do you define it? Who decides? Who decides whether someone engaged in it?

ROUGH: There actually is a statute already on the books that prohibits insurrection. And Justice Kavanaugh brought it up.

KAVANAUGH: It’s a federal criminal statute. And if you’re convicted of that, it says you shall be disqualified from holding any office. But President Trump has not been charged with that.

No, he was not. And he couldn’t here because the Colorado case was handled in civil court.

So those were the three main arguments of the day: Does Congress need to pass a law to authorize the states to enforce Section 3; is the president an officer of the United States; and did Colorado impermissibly add a new presidential qualification.

The briefs made even more arguments than that, like one on taking oaths. So the justices have that and a ^maze^ of paths they can take toward a conclusion. The consensus seemed to be to look for a uniform resolution. Here’s Justice Kagan:

JUSTICE KAGAN: This question of whether a former president is disqualified for insurrection to be president again is, you know, just say it, it sounds awfully national to me. So whatever means there are to enforce it would suggest that they have to be federal, national means.

I understand the concern for uniformity across the nation. But … as the saying goes … democracy is messy!

And that’s this week’s Legal Docket.

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