Ballot access case needs prompt, decisive action

The U.S. Supreme Court Thursday will hear oral arguments in Trump v. Anderson. The case involves former President Donald Trump’s challenge to the Colorado Supreme Court’s decision to keep him off the state’s presidential primary ballot for engaging in insurrection at the U.S. Capitol on Jan. 6, 2021, in violation of section 3 of the 14 amendment. 

Interest in the case is running high as the outcome will affect how the whole 2024 election may play out. As of the end of January, 51 amicus briefs (friend of the court) have been filed: 34 in support of the petitioner, Donald Trump; 4 in support of the respondent, Norma Anderson, a Colorado voter bringing the suit to deny Trump ballot access; and 13 in support of neither side.  

One of those neutral briefs was filed by three distinguished election law experts: Benjamin Ginsberg, a life-long lawyer representing Republican officials,  candidates and committees; Edward Foley, a professor of constitutional and election law at Ohio State University; and Richard Hasen, a professor of law and political science at the UCLA School of Law. What distinguished their brief was an almost apocalyptic warning of what might happen if the Supreme Court does not rule early and decisively to avoid a national catastrophe. The term “violence” is used seven times in their 20-page brief, while similar terms are sprinkled throughout. The authors make a strong case for how these disastrous consequences could unfold if the problem is not dealt with early on. Despite their avowed neutrality, they echo many of the same arguments made in the Colorado Supreme Court’s 4-3 majority opinion.

A more low key but persuasive neutral brief was filed by Michigan Secretary of State Jocelyn Benson (D). She argues that the central questions “must be fully answered now” because state election officials and voters “deserve to know whether [Trump] is eligible to appear on the ballot as a candidate before casting their votes” in the primary and general elections. “Finality must come now,” she adds, “so that the states and their election officials can conduct efficient and meaningful elections.” Michigan’s primary is on Feb. 27. She has ruled against a group of citizens who brought suit to exclude Trump from the ballot, and her decision has been upheld by a state appeals court and its Supreme Court. 

A brief  on behalf of petitioner Trump was filed by Kurt T. Lash, a constitutional law professor at the University of Richmond School of Law and a preeminent expert on the history of the 14th Amendment, including section 3.  Lash argues that section 3 does not apply to the president, and that Congress, in enacting the Amendment, was instead more fearful that leaders of the Confederacy would use their state-level popularity to secure seats in Congress or government appointments. 

Lash points out that an earlier draft of the 14th Amendment, authored by Rep. Samuel McKee (R-Ky.), declared in part that, “No person shall be qualified or shall hold the office of President or Vice President of the United States, Senator or Representative in the national congress, or any office now held under appointment by the President…who has been or shall hereafter be engaged in any armed conspiracy or rebellion against the government of the United States….”  

That draft was never voted on and instead the final language of section 3 dropped the “president or vice president” as principals and instead read: “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 previously took an oath “to support the Constitution of the United States [and] who shall have engaged in insurrection or rebellion against the same…”

While proponents of including the president say he implicitly is covered by the term “any office, civil or military,” Lash goes to great lengths to argue that the president is not a civil officer of the U.S. Instead, civil officers are those appointed by the president. While he concedes the language of section 3 is ambiguous, his detailed legislative and historical history of the amendment is both powerful and persuasive.

I previously believed that in order to avoid the ballot access controversy, the Supreme Court might rely on the argument that section 3 only applies to those holding, or just elected to, office, and not those running for office. However, that could still leave a monumental, post-election mess for Congress to clear-up, by rule or law, prior to inauguration — something that would surely prompt even more disruption than in 2021.

The Supreme Court would be better advised to adopt the Lash argument that the president is not a civil officer of the United States and therefore is not covered by section 3. That would bring the kind of prompt and decisive resolution sought by the Michigan secretary of state, thousands of other election officials, and millions of voters across the country. 

Don Wolfensberger is a 28-year staff veteran of the Congress, culminating a minority staff director of the House Rules Committee and then chief-of-staff of the full committee.  He is author of, “Congress and the People: Deliberative Democracy on Trial” (2000) and, “Changing Cultures in Congress: From Fair Play to Power Plays” (2018).  The views expressed are solely his own.