Analysis: SCOTUS’ Ruling Keeping Former President Trump on the 2024 Ballot

May, 2024  | By Trevor F. Gee

Trevor GeeIn September 2023, a group of Colorado voters (hereinafter collectively referred to as “respondents”) contended that the Fourteenth Amendment to the United States Constitution prohibits former President Donald Trump, who seeks the presidential nomination of the Republican Party in this year’s election, from becoming president again.[1] The Colorado Supreme Court agreed with the respondents’ contention and ordered Colorado Secretary of State Jena Griswold to exclude former President Trump from Colorado’s Republican Primary ballot and to disregard any write-in votes cast in his favor.

Naturally, former President Trump challenged that decision, leading to the Supreme Court’s first-ever ruling pertaining to the so-called “insurrection clause” on March 4, 2024. The specific clause is found in Section 3 of the Fourteenth Amendment, which on July 28, 1868, following the Civil War, was ratified by the necessary 28 of (the then) 37 States[2] and provides as follows:

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, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

 Simply put, the clause prohibits anyone from holding federal or state public office if that person has previously taken an oath to uphold the United States Constitution “as an officer of the United States” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Id. The clause was devised to help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 2544 (1866) (statement of Rep. Stevens, warning that without appropriate constitutional reforms “yelling secessionists and hissing copperheads” would take seats in the House). Undoubtedly, the clause was constructed by the framers to restrict State independence by imposing on certain individuals a harsh penalty – disqualification from holding office.

In every 1L Constitutional law class across the country, law students learn that the Constitution leaves some questions to the States while forcing others to be determined only by the federal government. Notably, Federalism principles embedded in that simple constitutional structure is what the Supreme Court relies on in deciding this case.

In respondents briefing leading up to the hearing in front of the Supreme Court, respondents conceded that the Constitution does not authorize States from removing sitting federal office holders; however, respondents argued that states may enforce Section 3 against candidates for federal office.

In support of this contention, respondents bring to the Court’s attention a lone example of where a State enforced Section 3 against a candidate for federal office. The Supreme Court, in its per curiam opinion, addresses this when it states “[w]e are aware of just one example of state enforcement against a would-be federal officer. In 1868, the Governor of Georgia refused to commission John Christy, who had won the most votes in a congressional election, because – in the Governor’s view – Section 3 made Christy ineligible to serve.” 601 U.S. Donald J. Trump v. Norma Anderson, et al. (2024).

However, the Court then notes that the governor’s determination was not final; a committee of the House of Representatives reviewed Christy’s qualifications itself and recommended that he not be seated. However, the full House never acted on the matter, and Christy was never seated. See 1 A. Hinds, Precedents of the House of Representatives §459, pp. 470–472 (1907). Ultimately, the Court disregards this “one hit wonder” of state enforcement when it opines that the respondents have not “identified any tradition of state enforcement of section 3 against candidates in the years following the ratification of the Fourteenth Amendment.” Id, at 9. (emphasis added).

Using a purely textualist interpretation of the Constitution, the Court cites the fact that the Fourteenth Amendment, on its face, does not affirmatively delegate such a power to the States. Indeed, the language contained in the Fourteenth Amendment speaks only to enforcement by Congress, which enjoys power to enforce Section 3 through legislation pursuant to Section 5 and that nowhere in the Fourteenth Amendment does the Constitution provide enforcement power to the States. For this reason, the Court rules that the responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress, not the States, and that the judgment of the Colorado Supreme Court cannot stand.

Ultimately, most legal scholars agree that the Supreme Court’s ruling is not surprising. As a result, and at the time of this writing, it is all but a certainty that President Joe Biden will again square off with former President Donald Trump in what will surely be a very important election.

If you have any questions or would like more information regarding the above, Trevor Gee can be contacted at (410) 576-4889 and tgee@semmes.com.

 

[1] Specifically, the Colorado voters contend that after former President Trump took the Presidential Oath in 2017, thereby swearing to uphold the United States Constitution, he intentionally cited the breaching of the Capital on January 6, 2021, in order to retain power.

[2] Coincidentally, the State of Colorado, in which the respondents are citizens, was not admitted as a State until 1876, approximately a decade after the Fourteenth Amendment was ratified.