The Colorado and Maine decisions to strike former President Trump’s name from the ballot on Fourteenth Amendment grounds have injected a dangerously destabilizing issue in an election already riven with suspicion and rancor. Trump has now filed an appeal of the Colorado decision with the US Supreme Court, but similar challenges are still pending in 17 other states. The American people deserve a quick and thorough resolution of the issue by not only the Court, but also by the Congress as well
The good news is that the Court has scheduled oral argument on the case for February 8, an extraordinarily expedited process that shows it is well aware of the importance of resolving the case as soon as possible. As a result, it will probably issue a decision by May.
The bad news is that any such decision will only resolve the main legal issues in the case and not the ultimate factual issue of whether Trump “engaged in insurrection” or gave aid and comfort to one on January 6, 2021 and thus should be barred from the presidential ballot. Former Attorney General Bill Barr accurately pointed out the deficiencies in the original trial at the district court, which lasted only five days and was largely based on hearsay evidence. Any real trial that could develop a sufficient record for a final decision would take months. The record in the Colorado case clearly fails that test.
However, there are crucial legal issues that the Colorado case raises on which the Court can rule and help speed the resolution of this litigation:
- Is the office of President subject to the prohibition of section 3 of the Fourteenth Amendment?
- Did the Colorado courts have jurisdiction to hear and adjudicate the issue or is the prohibition essentially only enforceable by Congress after the election?
- Is a conviction for insurrection required before application of the ban?
While not directly raised by the appeal, the Court should take the opportunity to state what the standard of proof should be for a suit under Section 3. Is it the preponderance of the evidence standard usually used in civil cases or the higher “clear and convincing” standard required in fraud and similar cases?
I believe the Court will likely hold that (1) the president is subject to Section 3; (2) the courts have jurisdiction; but (3) reverse and remand the case to the Colorado courts for a full trial on the merits, hopefully with an instruction on which standard of proof to use. Thus, far from being resolved, this legal controversy will continue to fester through and possibly after the 2024 election.
Here’s where it becomes ugly. While the Supreme Court can eliminate these initial issues, this means the various challenges at the state level will continue through the election. A final decision may not even be reached before the November election. Thus, in November American voters would have to choose between Joe Biden with all of his physical infirmities and unpopularity, and a candidate who may be disqualified from assuming office at any time during the election. If Trump nevertheless wins, he may then be refused office despite the results. We would see an unprecedented constitutional crisis that deprives the new president of any legitimacy and cripples the nation during one of the most perilous series of domestic and international crises in American history.
This issue must be settled promptly and before the November election. Moreover, it is too important to be decided in piecemeal fashion at the state court level. Congress has the power to avoid this chaos by providing that Section 3 claims be brought exclusively before a three-judge federal court with any appeal going directly to the Supreme Court. This process already exists for certain civil rights cases under 28 USC Section 2284. The applicability of Section 3 to a presidential candidate certainly involves a fundamental constitutional right. However, it would still require an amendment to the current statute to implement it. Congress should immediately pass legislation to apply Section 2284 to Fourteenth Amendment Section 3 claims to save the country from the pain a prolonged, fractious litigation of this issue would inflict on our already fragile political system.