And now there are two states which have claimed to disqualify Donald Trump from the Republican primary. Colorado at least put on a pretense of due process with a civil lawsuit in state court that resulted in Trump being found guilty of a federal crime by judges rather than a jury. That got appealed by the Colorado GOP yesterday to the Supreme Court, and quick action is expected.
In Maine, Democrats didn’t even bother with a judicial pretense. Also yesterday, Maine’s secretary of state Shenna Bellows barred Trump from appearing on the ballot after she decreed Trump an insurrectionist based on three challenges from registered voters. Bellows held a hearing two weeks prior to take testimony, and deduced Trump’s guilt without any trial or judicial involvement at all:
“The events of January 6, 2021 were unprecedented and tragic,” Bellows wrote in Thursday’s decision. “They were an attack not only upon the Capitol and government officials, but also an attack on the rule of law. The evidence here demonstrates that they occurred at the behest of, and with the knowledge and support of, the outgoing President. The U.S. Constitution does not tolerate an assault on the foundations of our government, and [Maine law] requires me to act in response.”
Trump campaign spokesman Steven Cheung said Trump would quickly appeal the Maine decision.
“Democrats in blue states are recklessly and un-Constitutionally suspending the civil rights of the American voters by attempting to summarily remove President Trump’s name from the ballot,” Cheung said in a statement. “Make no mistake, these partisan election interference efforts are a hostile assault on American democracy.”
Even those who receive Trump complaints with some skepticism will find this argument more persuasive under these circumstances. Since when has any candidate been barred from a ballot on the grounds of criminal activity — and insurrection has been a federal crime since at least 1948 — without a trial and conviction? In fact, when was the last time any state barred a major-party presidential candidate from a primary ballot at all? And now we have two states, using two different non-criminal hearing fora, declaring a leading major-party candidate a criminal, and this time by executive decree from a member of the opposing party.
Will this pass muster on appeal? Reason’s Ilya Somin again believes it will, as he believes that Colorado’s judicial decree of disqualification should also stand:
Secretary Bellows’ ruling is similar to the recent Colorado Supreme Court decision on the same subject. Like the Colorado court, Bellows concludes that the January 6, 2021 attack on the Capitol was an insurrection (an easy call, in my view), that Trump’s activities amounted to “engaging” in that insurrection (I think this is the hardest issue at stake), that the president is an “officer of the United States” covered by Section 3 (another easy issue), that Trump’s activities were not protected by the First Amendment, and that Section 3 is “self-executing” and thus states can enforce it without additional congressional legislation. Like the Colorado Supreme Court, Bellows also concludes that the laws of her state require candidates whose names appear on primary ballots to be eligible for the office they seek.
I won’t review Bellows’ reasoning in detail. But, as already noted, it is largely similar to that of the Colorado Supreme Court decision, which I analyzed at some length here. I think the Colorado ruling is correct, and therefore Bellows’ decision is sound, as well. As Bellows notes, her ruling is subject to review by state courts and—ultimately—the US Supreme Court.
Both of these conclusions err on the same point: the Constitution itself, and especially Section 5 of the 14th Amendment. The northern states included Section 3 to bar former Confederate soldiers from federal office, and Congress had records of who precisely had engaged in that insurrection. Nevertheless, the language in Section 5 required Congress to create legislation for the enforcement of the amendment, a provision which never grants any enforcement authority to the states:
5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Enforcement of this amendment comes at the federal level, not the states, and Congress had good reason at the time to limit it thusly. The southern states would eventually return to full status in the Union, but the northern states weren’t about to trust them with the enforcement of Section 3, or perhaps more so, Section 1, which guaranteed the civil rights of former slaves.
Furthermore, enforcement of the 14th Amendment has always been a federal jurisdiction in every other way. The Civil Rights Act and the Voting Rights Act get enforced by federal authority (at some points in a bygone era, at the muzzles of National Guard troops). In fact, Congress added a Title IX to Civil Rights Act of 1964, itself predicated on the 14th Amendment, to allow discrimination cases to get moved out of state courts and into federal courts for that reason. (That’s a different Title IX than the one applied to education; that Title IX is part of the Education Amendments of 1972, which also predicated on Section 1 of the 14th Amendment, and again which falls under federal authority and enforcement.)
States have since passed their own versions of the CRA, VRA, and other civil-rights legislation, which they can enforce under their own authority. But they cannot enforce the federal laws themselves, nor can they impose penalties for alleged violations that take place outside their jurisdictions. Nor can they add ‘qualifications’ to presidential office on their own, as recent attempts to require candidates to release their tax returns as prerequisites to ballot access show.
All of these are examples of Congress passing legislation to enforce the provisions of the 14th Amendment, and their sole authority to do so. Congress also passed legislation to enforce Section 3, although that also took several decades. In 1948, Congress re-codified insurrection as a federal crime in 18 USC 2383, but the war Congress in 1862 first made it a federal crime (37 Stat. 590, ch. 195, § 2). That disqualified anyone convicted of the crime from holding “any office under the United States,” but it still required a trial and conviction under the other auspices of the Constitution. (It also provided for a five-year prison sentence and forfeiture of property, especially slaves, an interesting historical note about that particular moment in time.)
But still, Congress revisited the issue in 1948 and codified insurrection again as a federal crime in 1948. Why? Given the timing, it may have been a reaction to the Soviet threat and the sudden interest in stamping out communist infiltrators. Either way, this was Congress exercising its jurisdiction and making clear that “insurrection” is a federal offense, one intended to be enforced by the federal government rather than the states.
Josh Blackman remains skeptical that even this serves as a disqualification from the presidency for various technical reasons. But it’s clear from the history of the 14th Amendment that states don’t have authority to enforce 14th Amendment restrictions on their own. If these states have insurrection statutes of their own, that might make for an interesting argument — but then it runs into the jurisdictional issue of where the supposed insurrection took place. Washington DC is not within the jurisdiction of either Maine nor Colorado — and there’s still the issue of Trump never having been charged with such a crime in either state or anywhere else.
All of this means that the Supreme Court had better act, and act quickly, to restore due process and jurisdictional restrictions. We don’t find people guilty of crimes in this country without criminal trials as structured by Article III Section 2 and the Fourth and Fifth Amendments. And we don’t allow partisan officers in states to decree that candidates they detest are disqualified from the ballot.
Correction: “with criminal trials” was supposed to be “without criminal trials” in the final paragraph. I’ve fixed it. Thanks to VIP member Mischief for the correction.
