An astonishing blunder at last week’s Supreme Court argument

Do states have a constitutional responsibility to apply the 14th Amendment in the way it organizes presidential primaries?

Justice Samuel Alito explicitly asked this question to Johnathan Mitchell, Trump’s lawyer, who responded: “Not that I know of.”

I found this astonishing, since there is a fundamental precedent by the Supreme Court that explicitly resolves the issue: Smith v. Allwright, 321 U.S. 649 (1944). Lawyers generally call it the “white primary” case, since it involved a Texas statute, authorizing the state’s Democratic Party to allow only whites to vote in its political primaries.

When voting officials followed the party’s decision and refused to allow Blacks to vote in its primary, the Supreme Court repudiated their decision. The opinion explicitly states that the 14th Amendment restricts the authority of the states to determine candidate qualifications. For present purposes, it is enough to quote his closing paragraphs:

The United States is a constitutional democracy. Its organic law grants to all citizens a right to participate in the choice of elected officials without restriction by any state because of race. This grant to the people of the opportunity for choice is not to be nullified by a state through casting its electoral process in a form which permits a private organization to practice racial discrimination in the election. Constitutional rights would be of little value if they could be thus indirectly denied.

The privilege of membership in a party may be, as this Court said in Grovey v. Townsend, no concern of a state. But when, as here, that privilege is also the essential qualification for voting in a primary to select nominees for a general election, the state makes the action of the party the action of the state. 

321 US at 666. (my emphasis)

To be sure, Southern Democrats deployed other means of suppression to exclude Blacks from white primaries until the Civil Rights revolution enabled President Lyndon Johnson to gain decisive congressional support for the Voting Rights Act. Nonetheless, if the court fails to enforce the terms of Section 3 of the 14th Amendment, and uphold Colorado’s disqualification of Trump, it would be repudiating a decision by the Supreme Court that marked the very beginning of the struggle for equal voting rights in the 20th century.

At the very least, the justices should not be blinded by Mitchell’s profession of ignorance and fail to recognize the power of the Supreme Court’s Smith v. Allwright argument. It is true, of course, that the court in Allwright was dealing with Texas’s violation of the 14th Amendment’s guarantee of “equal protection” in Section one, and not the disqualification provisions of Section three.

Nevertheless, this should not make a difference, as Maine Secretary of State Shenna Bellows explained in deciding to follow Colorado and disqualify Trump from her state’s Republican primary:

“I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section Three of the Fourteenth Amendment. I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.” 

The court has a fundamental obligation to follow the precedent established by Allwright and explain to the country why Bellows isn’t plainly right in viewing Trump’s encouragement of the Proud Boys’ invasion of the Capitol as a violent “insurrection” that nearly prevented Mike Pence from presiding over the lawful election of the president of the United States.

Bruce Ackerman is Sterling Professor of Law and Political Science at Yale University.