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Megathread - Update on state court cases challenging legality of Donald Trump candidacy under the 14th amendment section 3 of the US constitution
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- Title
- Section 3 Litigation Tracker
- Word count
- 347 words
Colorado's already a-go for the 30th ;) Current delay attempts denied, back to trial you go Mr. Trump
Edit: Its kind of funny how self-executing Trump's been in each and every one of his cases. Banging the table really isn't a viable, replicable, long-term legal anodyne anymore.
Whether or not Trump really deserves to be removed from the ballot, this is one of those things where I think the potential for future abuse makes it not worth it. Just look at how the Republicans instantly started trying to impeach Biden.
I have less than zero doubt that if this plan worked Republicans would go nuts trying to keep Democrats off ballots everywhere
Any loser should just try to overturn the election by any means. Why not, if there's no consequence? That's the precedent you set by not prosecuting.
Oh, you attended a leftist rally in college? We're gonna accuse you of plotting to overthrow the US government. It doesn't matter how flimsy our evidence is if you can be renoved from the ballot just for the accusation.
Obviously Trump should suffer consequences for trying to overturn the election. But those consequences should be criminal prosection for his involvement in that (which is already underway), not establishing precedent to remove anyone from ballots based solely on accusations of certain conduct. That is incredibly likely to be used for fascistic oppression. Someone who otherwise wouldn't try to overthrow the government deciding to do so because Trump wasn't removed from ballots is far less likely.
I don't think we disagree on that. You don't exclude someone based on an accusation, it demands a very serious investigation and full due process. The evidence in this case is very, very far from flimsy. It was done in the open in front of everyone. Like anything, the process could be abused, but if we allow people to just overturn elections, we've already given up on democracy.
Okay, but you're insisting we act like prosecution and removing him from the ballots are the same thing. Eugene Debs ran from incarceration many times, and while his continued harassment by the government should be a source of American shame, the fact he was allowed on most ballots should still present an opportunity for pride.
Edit: This response was the result of a miscommunication, please see the further conversation below. Left intact for context.
Yes, not prosecution itself - only if found guilty after due process. I'm very proud that Debs could run. Anyone should have that right - with one exception: those who are guilty of subverting elections should not be permitted to run in elections.
Okay, then I think we're on the same page. Your personal confidence on the issue must've come across as a more general conclusion than you meant it to me. Appreciate the clarification.
Important to note here - Debs was convicted under the Espionage Act of 1917, bolstered by the Sedition Act of 1918, which has since been largely repealed. His charges had to do with obstructing conscription which, at the time was seditious, was not insurrection or rebellion. It's also dubious as to whether he gave "aid or comfort to the enemies" of the USA. He didn't take up arms against the government and he didn't spy for Germany.
The speech that led to Debs' arrest was in June 1918. By April 1919 he was serving his sentence. Justice moved rapidly. Besides prison, Debs was also stripped of his citizenship which would have disqualified him from serving as president. He was also a minor candidate so efforts to keep him off the ballot would have come with their own risks.
If we're talking about barring candidates from the ballot, we need to look at the distinction between running and serving. Does a disqualified candidate have the right to run for office even if he cannot serve? I suspect this is unsettled largely because a disqualified candidate hasn't ever come close to actually winning an election.
Let's assume a disqualified candidate can run and chalk it up to his right to protest. At what point is he blocked from serving? Can a state certify an election result where a disqualified candidate wins? Are electors free to vote for a disqualified candidate? Is it constitutional to swear in a disqualified candidate? I don't know the answers but I suspect it'd trigger a constitutional crisis.
I agree that the evidence in this case is very strong. I also don't think it's reasonable to eliminate someone from eligibility to run for office based on accusations that have not yet completed due process -- the relevant court cases to Donald Trump's attempt to overturn the election have not yet gone to trial. Yes, the evidence is pretty damning regardless in this case, but we can't introduce precedent that allows us to exclude someone from the ballot without due process regardless because it will inevitably be used to exclude people based on much less serious evidence.
Not picking a horse in the conversation above, but I’d be remiss if I didn’t point out that court cases to determine whether he should or shouldn’t be on the ballot are due process.
They're not due process when it comes to the actual issue of treason/plotting to overthrow the election, though. They're to settle whether he's able to be excluded from the ballot according to current law. It would be outside the scope of these cases to determine whether he actually did the things he's being accused of. If they determine that he can be excluded on the ballot in this case, it won't be because they're determining his guilt re: treason, but because they're deciding that you can exclude someone from the ballot when they're in the middle of a court case in which they've been accused of treason.
That could seem reasonable in a common sense sort of way, but it isn’t so. These case are to settle whether he must be excluded under current law. That current law would be Section 3 of the 14th Amendment of the Constitution of the United States of America and the laws of the state in which a case was filed.
I emphasize must because, setting aside all the jurisdictional and procedural questions, the question before the courts isn’t could he be excluded or should be excluded, but must he be excluded.
The due process he’s owed as it relates to disqualification and ineligibility from ballots is different from the due process he’s owed in a criminal trial related to the same underlying conduct. If you read through the Colorado complaint - maybe search due process to save yourself some time - you’ll see a citation related to the standard for due process.
The one I recall most clearly was a recent case and persuasive authority at best so the Colorado court may or may not make a similar determination regarding due process. But even if the court decides the standard for due process is higher…that in and of itself is…due process.
He’s accused of being disqualified under the Section 3 of the 14th Amendment and therefore ineligible to appear on ballots under the law of various states. It is not inappropriate for a court to make a determination on that. Making that determination could involve weighing fact evidence related to alleged conduct. Alternatively, a court could determine they’re not able to make that determination.
This last bit is perhaps the most important: criminal liability and civil liability are different. Someone can be found not guilty of a crime and be found liable in civil court for the exact same conduct. The standards of proof and elements of claims differ between the two. But note too, that the opposite could occur: one could be found guilty in criminal court but not liable in civil court.
So, no, it wouldn’t be outside of the scope of these cases for the courts to determine whether by a preponderance of the evidence that he did the things he’s accused of doing. That just means it’s more likely than not that he did, which is different than the beyond a reasonable doubt standard needed in a criminal trial.
The courts aren’t deciding whether he’s in the middle of a court case in which he has been accused of treason, they’re determining whether they can determine if he’s excluded under Section 3 of the 14th Amendment, if so whether his conduct disqualifies him under the 14th Amendment, and if so whether the Secretary of State should be compelled to exclude him from the ballot.
And you’re right, if they determine he must be excluded from ballots it won’t be because they determined his guilt regarding treason. That’s a different legal process.
This is absolutely what I understood to be the case and you've expressed it way more clearly than I did, so thank you.
My argument isn't that this isn't due process per se, but merely that if the court rules that Trump can be excluded under Section 3 of the 14th Amendment without being found criminally liable (based on a lower standard like preponderance of the evidence) it would be a potentially dangerous precedent because it would weaken the standard of evidence needed to exclude someone from a ballot. I think exclusion from the democratic process -- such as removing the right to vote or run for office -- should require the highest possible standard of proof, given how fundamental those things are to democracy as a process. I think my wording before was less clear on this but hopefully I've expressed myself better here.
I’m glad we were able to work through that to find mutual understanding. Since it seems your concern is about burden of proof as it relates to due process, you might enjoy reading ORDER RE: DONALD J. TRUMP’S BRIEF REGARDING STANDARD OF PROOF IN THIS PROCEEDING.
Clear and convincing evidence is the burden of proof that falls between “preponderance of the evidence” and “beyond a reasonable doubt.”
Trump’s argument and Petitioner’s response cited the same cases. Santosky v. Kramer was cited for the test to determine whether a standard of proof satisfies due process. The three factors considered under the Santosky test originated in Mathews v. Eldridge and are:
The order briefly discusses both sides’ arguments about how the test applies to the facts in the case, but ultimately concludes that “the Court need not analyze the issue further” because:
The burden of proof applied when deciding the Colorado case will be “a preponderance of the evidence” as prescribed in C.R.S. § 1-4-1204(4), the Colorado law on which the case is based … and the burden of proof in most civil cases.
While in Santosky the Supreme Court did establish that a clear and convincing evidence standard applies when states seek to sever parental rights irrevocably based on neglect, just a few years later in Price Waterhouse v. Hopkins it emphasized that:
and, perhaps more importantly, that:
With that in mind, assuming that Trump had identified a “fundamental liberty interest,” it’s likely that further inquiry would focus on the weight of his private interest relative to the government’s interest. I suspect that would go in the government’s favor rather than Trump’s:
Revisiting due process briefly, Trump is an intervenor in the Colorado case. An intervenor is someone who isn’t named in the original case but has a personal interest in the outcome of it and enters the case by filing a motion to intervene.
Intervenor Trump did make that argument that “Petitioners seek to use Section 113 against a private citizen, to terminate his run as a candidate, without basic, well-established protections required by due process.” This was a terrible argument and was so removed from the facts that it was addressed in a footnote of the OMNIBUS RULING ON PENDING DISPOSITIVE MOTIONS:
And in case the footnote wasn’t direct enough, on p. 12 we find:
I recognize that only a portion of this addresses your position that a higher standard of proof should be applied, but I hope it’s interesting nonetheless. To summarize this a little bit:
My values don’t necessarily align with the law. I would love to see Richardson revisited and I think there’s a reasonable argument that actions like deportation deserve a higher standard of proof.
But I’m not sure how to resolve the conflict between a candidate’s desire to run and a state’s interest in protecting the integrity of its electoral processes or the changes to standard of proof that would be necessary across the board so that less extreme government actions don’t require more evidence than more extreme government actions, like deportation.
Wow, thank you so much for this comment, I learned a lot here. I didn't know about the "clear and convincing evidence" standard and would have supported its application here had I known about it.
I think this is fundamentally where I fall on the issue. I think barring anyone from voting, even convicted felons, is beyond the pale in a democracy and should never happen (though given how America treats its felons more generally, it's not out of character at least). I see the exclusion of someone from the ballot as being a lesser version of that existing injustice.
Suffice it to say I also think deportation deserves a higher standard of proof as well, I actually had no idea it was lower than a criminal conviction.
I think perhaps the bigger issue is that the USA appears to be either incapable of or unwilling to let justice move fast enough to hold accountable a person who very publicly led an insurrection before he's capable of standing for election again.
There was an attack on the Capitol. It was televised live. There were dozens of lawsuits and a coordinated campaign to count fraudulent electoral votes. Trump and the GOP tried to steal an election in broad daylight. The only reason the senate didn't convict him of inciting insurrection was because the jury was stacked with his accomplices.
There's really not a lot of nuance here.
It goes both ways. If Trump gets away with attempting a coup against the US government, then we will also see other politicians (Democrats included) attempt coups against the US government.
When the unprecedented happens, new precedents get set. There is no way to avoid that. We have to decide whether we set a new precedent for impeaching and prosecuting people in office at a much higher rate than we did previously, or we set a new precedent to allow people in office to commit serious crimes that endanger the continued existence of the government.
I, personally, would much rather the former than the latter. Either way is a rocky path, but one of them almost certainly ends in going over a cliff.
No, you won't. Democratic Party ideology holds adhering to norms, itself, as a virtue, not the results that adherence is meant to achieve. Someone who is a committed Democrat, which encompasses any non-right-wing politician in the US who has a chance at getting close enough to power to be able to stage a coup, abhors the thought of the coup itself much more than they abhor any Republican policy. I don't know of any left-wing demagogue who could get to the point where they could have a chance at pulling a coup off without going through the Democratic Party, either.
The kind of right-wing ideology that's been adopted by much of the Republican party holds grasping at your deserved place in the hierarchy as a virtue, and when you do, everyone must fall in line behind you. We've already seen that on January 6th. That's why a decisive and comprehensive reaction is needed - prosecuting Trump would be the least of those, and barring his candidacy as a direct result of his insurrection would be much better. Half-measures to protect norms that have already failed before are not sufficient now (and to be clear I think we agree on that).
If there is a power vacuum (which there would be if we permitted politicians to attempt coups), then any political party with any sense will attempt to fill that vacuum in an effort to prevent their political enemies from doing so. If the US government is vulnerable to a coup, the Democrats should obviously attempt to reduce that vulnerability, which includes punishing people who attempt coups and preventing them from making further attempts — and that indeed is what is happening.
But in this hypothetical situation where we have decided to just not prosecute politicians for criminal behavior like this and not bar them from public office, then the next best thing that Democrats could do is seize control before Republicans do, and then hopefully create a new government with a more robust democracy. (It would still be a huge disaster, of course; there would be a huge economic fallout and a lot of chaos and panic in the meantime. Obviously we should just prosecute treason instead.)
I agree it's a potentially slippery slope. Hopefully Trump simply being convicted would sink his political career. If it doesn't, Democrats would have seriously dropped the ball.
I've posted this elsewhere, but if you are interested take the time to read this amazingly thorough amicus brief filed by Akhil Reed Amar and Vikram David Amar, constitutional historians. It is very compellingly written and won't bore you.
In it, they highlight a crisis at the forefront of the drafters' of the 14th amendment mind, namely the "Secession Winter" that occurred between Lincoln winning the 1860 election and his inauguration. In this time, officials in the outgoing Buchanan administration who were Southern sympathizes, through action and inaction, used their official powers to further the cause of the rebels, breaking their constitutional oaths. Particularly highlighted is the case of Secretary of War John B Floyd, who among other things distributed federal arms to the militias in seceding states and otherwise attempted to thwart the peaceful transition of power. Apparently this guy was once as well known as Benedict Arnold, and his name explicitly came up many times during ratification debates.
Also highlighted is the fact that during Reconstruction, it was generally understood that Section 3 of the 14th amendment was self-executing, not requiring a formal conviction of insurrection or a related crime. Former rebels who had nonetheless won elections in Reconstruction governments in the south were barred from office by the Union army administering those states.
Another interesting point is that at some point during the drafting process, the language of the amendment changed to explicitly exclude any future insurrectionists, not just those from the civil war. Clearly this was intended to be a forward looking amendment.
I used to be on the side of "at minimum a conviction should be required", mostly borne out of a desire to avoid future abuses of the amendment. But after more reflection and reading, particularly of the above brief, I am now of the opinion that we should use this tool given to us by those who fought to keep the union together.
Can someone ELI5 why this is still being attempted? Is there a snowball's chance the US Supreme Court would reach a majority that would uphold a Trump ban from public office?
Each state has its own laws and precedents that a judge would consider when presented with such a case. And since who appears on a presidential ballot is a matter left to each state individually, this is where the focus is.
Whether it would hold up before a Supreme Court challenge is a risk, but even if it doesn't that whole process could take longer than the current election cycle.
That's a good point; being left off the ballot in even one swing state is a big deal.
The idea was first proposed by a couple of very prestigious law professors, who have strong ties to the Federalist Society, a very influential conservative group focused on the law.
Trump is a loose cannon. He has no impulse control. Even people very loyal to the republican party might want to reclaim it from Trump. Also, lawyers and judges tend to not approve of people who habitually break laws.
It is risky for a republican to admit they don't like Trump in public because of his base, but Trump has made many enemies and alienated some former supporters.
I can see reasons why the justices might go for this and reasons why they might not. I don't think it is a sure thing either way but the court will decide based on what they think is good for them going forward. Their job has them habitually thinking 50 years in advance. Trump is old.
we can assume, cynically (but also probably correctly) that Trump's cronies on the Supreme Court would bail him out.
it's important for these lawsuits to try anyway.
make the Supreme Court actually take the vote. force them to create a public, historical record of their corruption and complicity, rather than leaving it as an assumption of what they would have done.
You might be right but watching this court I am not certain. The majority has loyalty to their own interests, to the court as an institution, to the Federalist society, to the Republican party, to some wealthy sponsors etc. Even the ones who owe their seats to Trump are not Trump cultists. (Possibly one or two exceptions)
It is IMHO within the realm of possibilities that they choose to short circuit the craziness and emphasis on revenge and national security problems this way.
However, they might also decide that this is a tool that is likely to be misused in future if door is opened by ruling against Trump.
Whatever they do will be Machiavellian. But they could play Brutus to Trump as Caesar. We don't know.
There’s a near 0 chance for good reason and the Supreme Court is likely to fast track a case like this due to the precedence.
If a state blocks Trump then I think the Supreme Court should address it ASAP because the arguments seem to mostly be around the constitution. Granted, I’m not a big fan of the current Supreme Court.
Law professors and national security experts project possible outcomes to a Supreme Court ruling against Trump's eligibility to run for president
This stuff makes me feel so lost and a bit stressed, as though I'm in fight or flight mode.
Please take care of yourself. This case is making history but we are all in the peanut gallery watching while the Supreme Court decides and we don't have to watch.
Oral arguments are Thursday and then sometime later the court will make a decision public
I mean everything that's going to happen between now and January 20, and what will happen after that if Trump wins.
Yeah. If this section 3 constitutional challenge fails at the Supreme Court, I am going to start making plans to contribute to get out the vote efforts on election day.
If he is on the ballot, it will be a contest between MAGA and the rest of us. I'm hoping there are enough people highly motivated to stop him, but we can't know ahead of time.
Oregon Supreme Court won’t remove Trump from ballot for now, says it’s waiting on SCOTUS
The Supreme Court just agreed to hear the challenge to Colorado's decision to exclude Trump from the ballot.
https://www.scotusblog.com/2024/01/supreme-court-agrees-to-hear-trump-plea-to-remain-on-colorado-ballot/
My understanding is that his participation in the insurrection was more to do with the slates of fake electors and the halting of the vote count than in the encouraging of the crowd, and that his remarks to the crowd aren’t really considered as relevant as the behind the scenes details of how he plotted to overthrow the certification process.
Donald Trump reply brief to attempt to disqualify him under section 3
I'd like to see a response to that. At least the start of his first point is actually fairly convincing. I don't know enough to believe or refute it, but I could definitely buy an argument that the president is not considered an officer...or that the president is an officer.
If you are curious and have the time, I recommend reading this amicus brief filed by a constitutional historian. It partially addresses this point, although of course the final decision should settle it. It is written in such a way that it is not at all dry or boring, and provides a lot of historical context. The first thing I have read to make me think hm, maybe the Supremes will actually surprise us all. Starting on page 17:
Highly recommend the whole thing.
The eventual opinion should answer this question.
Supreme Court oral arguments about section 3 challenge: Frequently Asked Questions
This is a great explanation, and it's too bad that all the general public will see in the end is yes or no.
Six Main Issues quote
As such, here are the six main issues that the many briefs have put at the center of the arguments — the first half relating to the Trump end of this question and the second half relating to the Colorado end of the question:
Does Section 3 of the Fourteenth Amendment cover a president who engaged in insurrection? This is really two questions: Is the president is “an officer the United States, and does the president take “an oath … to support the Constitution of the United States”? These are arguments that attempt to sound very serious and formalistic, but ultimately should not pass muster. The arguments include that the president can’t be an officer because the Constitution details how the president appoints officers and, as Trump’s lawyers wrote, the president “does not (and cannot) appoint or commission himself.” The oath argument is, incredibly, worse, asserting that the president’s oath to “preserve, protect, and defend” the Constitution — not to “support” it.
Does Section 3 disqualification include the presidency? This is a question of whether the presidency is an “office … under the United States”? As with the first, this is a formalistic — and I think, even weaker — argument that words do not mean what any ordinary person would think they mean.
Had Donald Trump “engaged in insurrection” under Section 3 of the Fourteenth Amendment? This is where questions arise about how we decide whether Trump did the deed. In their petition for a writ of certiorari, Trump’s lawyers stated, “The Court should also reverse the Colorado Supreme Court’s holding that President Trump ‘engaged in insurrection,’” and the brief went on to argue that Jan. 6, 2021 was not an “insurrection,” as intended by Section 3, and that, regardless, Trump had not “engaged in insurrection.” The Colorado courts decided otherwise, including after a five-day trial.
Section 5 Enforcement The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Does Section 3 of the Fourteenth Amendment allow states to act without additional authorization from Congress? This is a question of whether Section 3 of the Fourteenth Amendment is “self-executing,” meaning, is it in effect by its own terms, without Congress needing to do anything more. If Section 3 is self-executing, then it is the act of having “engaged in insurrection” that renders a covered person disqualified. If it is not self-executing, then there would need to be legislation passed setting forth how Section 3 is to be implemented. Opponents of this issue point to Section 5 of the Fourteenth Amendment for evidence that Section 3 is not self-executing, but others reasonably point to the fact that the rest of the Civil War amendments, including Fourteenth Amendment provisions, have been held to be self-executing.
Does the U.S. Constitution allow state courts to enforce Section 3 of the Fourteenth Amendment? This is the “Electors Clause” argument. It is, essentially, a next-case argument that follows on last term’s rejection of the “independent state legislature” scheme. In Mitchell’s brief for Trump, he argued that the U.S. Supreme Court can and should overrule the Colorado Supreme Court in its interpretation of state law.
Does Colorado law allow the Colorado courts to conclude that Trump violated Section 3 of the Fourteenth Amendment and order that he be removed from a primary ballot? The court would not ordinarily review a state court’s conclusion about state law, unless there is a federal constitutional reason to disturb the state court ruling. If the U.S. Supreme Court were to decide any of the first four questions as Trump wishes, then it would have a constitutional basis for reversing. However, if we get into this sixth question in any detail on Thursday, it almost certainly means that at least some justices think that Trump’s lawyers have made a reasonable argument in the fifth question.
A professor in Ireland has long argued that US presidents are not 'officers of the United States'. That theory will now be decided by the US Supreme Court
What's crazier is that been over three years since he led an insurrection in broad daylight and he's still walking free.
What's crazier is that he and the GOP staged a coup (it failed) and to tens of millions of Americans that isn't a deal breaker.
I'll invite you to revisit the facts.
A coup d'état is an overthrow of the government. Trump and the GOP attempted one. They put forward fraudulent electors, they brought bogus lawsuits, there was a pressure campaign, they literally tried to stop the votes from being counted in order to supplant the legitimately elected government.
Trump gathered that riotous crowd in Washington DC to "stop the steal" or, in plain English, stop the peaceful transfer of power to keep trump in office. He gave the order to march to the Capitol. They attacked the Capitol building and breached Congress, interrupting the count of electoral votes. Fortunately it was completed later.
People planted pipe bombs. Some were armed and otherwise equipped to execute members of Congress.
Let's not pretend that, had this plan worked, trump would not have accepted that outcome.
He needs to be prosecuted and imprisoned.
If everyone agrees that his winning is inevitable, then of course he will win. I won't accept that before history proves me right or wrong.
The Supreme Court case about disqualification was started by some influential conservative lawyers. Not everyone who hates Trump is on the left. We are all going to find out soon what the Supreme Court thinks about this argument. But the fact that the case was brought at all is interesting.