Experts, Voters Urge Supreme Court to Rule on Trump Eligibility Challenges

Supreme Court Declines to Fast-Track Special Counsel Petition, Handing Trump a Win


An amicus brief argues that Section 3 of the 14th Amendment is no longer viable and cannot be used to disqualify a candidate

Several parties have submitted amici briefs to the U.S. Supreme Court, urging the high court to weigh in on the execution of Section 3 of the 14th Amendment and former President Donald Trump’s eligibility to run for office again, and put a definitive end to the 60-some challenges that have been filed across the country.

The Colorado GOP and President Trump’s attorneys filed separate appeals to the nation’s highest court after the Colorado Supreme Court issued a surprise ruling to disqualify President Trump from the ballot.

The latest brief was submitted by the Public Interest Legal Foundation (PILF), a nonprofit law firm with a focus on election integrity, and Hans von Spakovsky, a director on the board of PILF and senior legal fellow with the Heritage Foundation, who contributed to the brief in his personal capacity. Mr. von Spakovsky is also a former commissioner on the Federal Election Commission.

They take the position that the Colorado Supreme Court acted incorrectly and that President Trump belongs on the ballot if the Colorado GOP so chooses.

“This case presents the opportunity for this Court to weigh in on the application of Section 3 of the Fourteenth Amendment to former President Donald Trump,” the brief reads. “These questions are vitally important as states should not add qualifications for the Presidency beyond what the U.S. Constitution set forth.”

Section 3 Viability ‘Suspect’

PILF argued that Section 3 of the 14th Amendment is no longer viable. The once little-known statute has been catapulted to national recognition in recent weeks with news that President Trump might not appear on the Colorado and Maine ballots, but those rulings have since been appealed and are on hold pending action from the U.S. Supreme Court.

The 14th Amendment grants citizenship and equal rights to all persons born and naturalized in the United States, with the intention of extending these rights to former slaves. The post-war amendment included a third section meant to prevent officers who abandoned their posts to join the Confederacy from returning to office. It includes a provision whereby Congress can remove this “disability” through a two-thirds vote.

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“Congress did just that in the Amnesty Act of May 22, 1872,” the brief reads. The act was passed with a two-thirds vote in both chambers of Congress 14 years after the Civil War.

“The Act provided [t]hat all political disabilities imposed by the third section of the fourteenth article of amendments of the Constitution of the United States are hereby removed from all persons whomsoever, except Senators and Representatives of the thirty-sixth and thirty seventh Congresses, officers in the judicial, military, and naval services of the United States, heads of departments, and foreign ministers of the United States,” the brief reads.

Congress further negated Section 3 disabilities in 1898 during the Spanish American War, the brief argued, with another act that the disability incurred under Section 3 “is hereby removed.”

“There was no language preserving any of the disqualifications for future cases,” the brief argues.

This legal theory was challenged in 1919 when Congress “wrestled with the application” of the Amnesty Act in relation to whether a congressman prosecuted for opposing World War I should be seated. The brief authors argue a congressional committee had erred in finding that Congress has no power to repeal the provision in the Constitution via a mere statute.

“The congressional committee ignored the second sentence of Section 3, a unique provision not found in any other amendment, that expressly grants Congress the power to act, just as it did in 1872 and 1898, to repeal and void Section 3.”

If the Amnesty Act was not meant to apply to future issues and candidates, they argue, then Section 3 would not either, and would therefore only apply to those who engaged in the Civil War.

“Otherwise, what constitutes an insurrection or rebellion is a pure political question outside of any court’s jurisdiction,” they argue.

45 Voters Object to Disqualification

In another brief, 45 Colorado citizens who say they intend to vote for President Trump argued the Colorado Supreme Court ruling was flawed.

“Amici are thus understandably concerned with the dangerous precedent set by the Colorado court and its potential to virally spread to other states,” the brief reads.

They argued state courts lack jurisdiction to make such a ruling because Colorado state law does not give the court the authority to adjudicate Section 3 of the 14th Amendment.

They further argue that the U.S. Supreme Court cannot merely reverse the lower court order, as the disqualification ruling has already caused other states to act.

“This Court could grant review and simply reverse the Colorado Supreme Court on the above jurisdictional grounds. Doing so, however, would solve nothing and actually makes matters worse. The Colorado court has unleashed harms which will creep beyond Colorado’s borders,” they wrote.

They request a “full adjudication of the merits,” which would include the arguments on insurrection, in order the “meaningfully remedy the harms done by the Colorado court.”

Trump Challenger Urges Court to Act

On Jan. 4, a retired lawyer from North Carolina also submitted a brief in the appeal of the Colorado disqualification. Although Mr. Brian Martin has himself sued to keep President Trump off the ballot in his state, he urged the Supreme Court to settle the issue on an expedited basis in the interest of all voters.

“The fundamental question presented in this matter is one of national significance for which a uniform nationwide rule should be established,” the brief reads.

Mr. Martin wrote that in December 2013, he had a private but not confidential conversation with the late Justice Antonin Scalia about Bush v. Gore and why the Supreme Court took that case.

“Justice Scalia replied to the effect of, ‘What case could be more important than one raising a federal constitutional issue that concerns the election of a President.’ It is this Court’s privilege and responsibility to decide issues of such nature and significance,” he wrote.

While most jurisdictions have dismissed challenges to President Trump’s eligibility under Section 3 of the 14th Amendment, the Colorado ruling and subsequent Maine disqualification have changed the situation.

Mr. Martin argued this may cause re-litigation in states that previously settled such challenges as well.

“It cannot be acceptable that voters of some states are allowed to vote for (or against) a candidate for the office of President while the voters of other states do not have that choice,” Mr. Martin wrote.

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