After several days of trial involving multiple witnesses and other evidence, a Colorado state court became the fifth to reject an effort to keep Donald Trump off a state presidential ballot under Section 3 of the Fourteenth Amendment, a post-Civil War addition to the Constitution ratified in 1868, reported The Bulwork. It provides: “No person shall . . . hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath . . . as an officer of the United States . . . 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.” Because the Colorado case involved lengthy testimony and detailed findings of fact and rulings on the meaning of Section 3, the 102-page decision is worth summarizing at some length. Clearly, Colorado District Judge Sarah B. Wallace wrote with an expectation that judges at higher state courts and likely even the U.S. Supreme Court would wind up studying her analysis on an appeal petition.
Here’s what other courts have ruled thus far about Trump and Section 3:
- Earlier this month, the Minnesota Supreme Court rejected a bid to keep Trump off the state’s primary ballot, but for a different reason than Wallace’s: that “there is no state statute that prohibits a major political party from placing on the presidential nomination primary ballot . . . a candidate who is ineligible to hold office.” Translated, the Republican party is fully in charge of who gets on the primary ballot. Yet Minnesota Chief Justice Natalie Hudson noted that the plaintiffs could file another suit later to keep Trump off the general election ballot should he win the Republican primary in Minnesota.
- In Michigan, Court of Claims Judge James Redford took a different route altogether, ruling that courts have no business deciding what Section 3 means because it’s a “political question” that exclusively belongs to Congress. (The political question doctrine is a made-up rule the Supreme Court uses if it just doesn’t want to wade into sticky political issues like crafting the technical rules governing an impeachment trial, for example.) However, if Trump wins the general election, Redford added, his eligibility under Section 3 could be revisited, and if he’s then determined ineligible, the Twentieth Amendment—which provides for the vice president-elect to become president if a president-elect dies before taking the oath of office—could somehow kick in.
- In New Hampshire, a federal judge ruled in October that John Anthony Castro, an unknown presidential candidate from Texas who has initiated over two dozen Section 3 lawsuits across the country, did not have standing to sue under Article III of the U.S. Constitution—meaning he lacked a sufficient injury to bring the matter within Article III’s “case” or “controversy” requirement that gives federal courts jurisdiction in the first place. The judge wrote: “Castro has not established that he has or will suffer a political competitive injury arising from Trump’s participation in the New Hampshire Republican presidential primary.” In addition, he agreed with the Michigan state court judge that the matter is probably a “political question” that’s for elected politicians—not judges—to decide.
- Finally, in Florida, another federal judge dismissed a case for lack of standing in September. The plaintiff in that case was an individual citizen who, the judge ruled, had no legal basis to complain about another person’s running for office. A “generalized interest” in the election outcome is not enough of an injury to invoke the power of the courts.
All these cases will undoubtedly be appealed.
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