What the Colorado Oral Argument Missed

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Written By Pinang Driod

Often the outcome of a Supreme Court case is hard to predict from its oral argument. Not yesterday’s.

The justices’ questions in Trump v. Anderson made clear that the Court will rule—perhaps even unanimously—that no state can decide to disqualify Donald Trump from serving as president unless and until Congress enacts a statute granting that permission. Because Congress hasn’t done so, the Court, in all likelihood, will order Colorado and every other state to let Trump continue his reelection campaign.

One can understand why the justices would want to reach this result. As many of them observed in their questions, the presidency is a nationwide office; the idea that state legislatures, rather than Congress, would decide a candidate’s eligibility for the job seems incongruous. Several justices suggested that, without congressional involvement, a candidate might end up on the ballot in some states but not in others, resulting in chaos in November. A particular state’s decision—if it’s one of the swing states—could make the difference in the election.

The justices also noted that the disqualification provision at issue in this case—barring oath-breaking insurrectionists from holding office again—is part of the Fourteenth Amendment, adopted during Reconstruction, when Congress wanted to curtail the power of state legislatures, to protect the rights of the previously enslaved. The Fourteenth Amendment, moreover, explicitly gives Congress the power to enforce all of the amendment’s provisions, including its disqualification clause.

Perhaps most practically, the justices appeared to be looking for an opportunity to avoid an ugly split decision between Republican and Democratic appointees. Punting the issue to Congress offers a clear way out.

The momentum toward such a ruling is likely unstoppable. Yet there are still strong reasons for the Court to pause before leaving the issue up to Congress, and arguments worth considering that did not get fully aired or substantiated yesterday.

As Jason Murray, the lawyer arguing for Trump’s disqualification, pointed out, Article II of the Constitution gives each state legislature the power to prevent its state’s presidential electors from voting for a candidate who is ineligible to serve in that office. This was true before the Civil War: If one of the major political parties in the antebellum era had nominated a candidate who was not born a U.S. citizen, for example, state legislatures would have had Article II power to stop their electors from voting for this ineligible person—without prior permission from Congress. The same was true after the Civil War and the ratification of the Fourteenth Amendment, and remains true. If Arnold Schwarzenegger were a presidential candidate this year, perhaps on the potential No Labels ticket, he would be constitutionally ineligible because of his foreign birth, and state legislatures would be entitled to keep him off the ballot.

The Fourteenth Amendment added an extra ineligibility rule, against insurrectionists, as did the Twenty-Second Amendment, which prevents any president from being elected to a third term. State legislatures can stop their state’s electors from voting for candidates disqualified on either of those grounds as well. Although the Fourteenth Amendment gives Congress the power to enforce its specific disqualification provision, nothing in the text of the amendment says or even implies that this power necessarily blocks the authority that state legislatures have over presidential electors.

Today we rarely think about the role that electors play in presidential elections. But the brute constitutional fact, whether we like it or not, is that state legislatures under Article II can determine the “manner” of appointing their electors; that includes the ability to appoint electors themselves, without a popular vote. If a state decides that Trump is ineligible from holding office, as Colorado has, its legislature has the power to directly select electors committed to voting for Joe Biden. By the same measure, a Republican state legislature could appoint electors committed to voting for Trump. Yes, it’s unsettling. But that is the nature of the system our Constitution created.

At the oral argument, Justice Samuel Alito asked Murray to suppose that a “legislature really doesn’t like candidate A, thinks candidate A is an insurrectionist, so the legislature passes a law ordering its electors to vote for the other candidate. Do you think the state has that power?” Murray was a bit tentative in his answer, almost as if he were embarrassed by this constitutional provision. He should have been much more emphatic in declaring that, absolutely, this is the way our presidential elections are set up.

How can we be confident that the constitutional power granted to state legislatures in Article II really encompasses the Fourteenth Amendment’s disqualification provision? Several justices asked for historical evidence from “shortly after adoption of the Fourteenth Amendment,” as Justice Clarence Thomas put it. Murray mentioned one tangential example: In 1868, Georgia’s governor decided that a congressional candidate, John Christy, was disqualified.

But the historical record contains other, stronger examples—also from 1868, during the first presidential election after the Fourteenth Amendment’s adoption.

That year, Florida’s legislature took back the power to appoint the state’s electors. The state legislature at the time was still under the control of pro-Reconstruction Republicans; they wanted Ulysses S. Grant, their party’s nominee, to win the election, because he favored continuation of Reconstruction. But the legislature feared that the state’s citizens, if allowed a popular vote to appoint the electors, would vote for the Democratic ticket. So the legislature decided that it would appoint the state’s electors itself. Alabama’s legislature did the same, although the governor there vetoed the move, confident that Grant would win the vote in the state, which he did. (Louisiana’s legislature also considered appointing its state’s electors, but lawmakers were persuaded by the governor to trust citizens with the presidential decision—and Grant lost the state.)

These examples show that state legislatures could wield Article II power to determine which candidate their electors would vote for in the presidential election immediately after ratification of the Fourteenth Amendment. They could exercise this power based on a candidate’s connection to the Civil War and posture toward Reconstruction. That included, if necessary, preventing their state’s electors from voting for a candidate whom legislators viewed as betraying the Constitution by having supported the Confederacy. (In 1868, the Democrats ended up nominating a presidential candidate, former New York Governor Horatio Seymour, whose loyalty to the Union could not be questioned.)

At yesterday’s oral argument, several justices imagined that the authors of the Fourteenth Amendment would have been worried about southern-state legislatures using their Article II power to block their electors from voting for a pro-Reconstruction candidate like Grant. But it was broadly understood in 1868 that state legislatures were empowered to control the appointment of their state’s electors, whether for or against Grant. Yes, the authors of the Fourteenth Amendment were pro-Reconstruction Republicans, but they didn’t write their amendment in a way that prevented state legislatures from dictating the outcome of their state’s electoral votes. Rather, these authors saw themselves as giving state legislatures a mechanism for barring electoral votes from going to Confederate insurrectionists.

The power that state legislatures had to enforce the Fourteenth Amendment’s disqualification provision is not just speculative. Reviewing history, we can see a state legislature blocking the election of a federal candidate because of disqualification concerns. This occurred in the year that the Fourteenth Amendment was ratified—and, crucially, before Congress had enacted any enforcement statute. (One was not enacted until 1870; it was repealed in a 1948 recodification of federal laws.)

In 1868, Ohio’s legislature decided against electing a U.S. senator candidate on the grounds that he was plausibly disqualified by Section 3 of the Fourteenth Amendment. Clement Vallandigham was an important and controversial figure at the time; he has been largely forgotten, and here is not the place to go into all the details of his significance to Civil War and Reconstruction history. The key points relevant to the Colorado case are that he had been a member of Congress from Ohio, and that his pro-Confederacy conduct during the Civil War led to his military arrest and ultimate exile to the Confederacy by Abraham Lincoln. When Vallandigham returned to Ohio, he was viewed as a martyr by anti-Reconstruction Democrats. In 1868, he was the leading Democratic Senate candidate from the state. But the state legislature (which, prior to the Seventeenth Amendment, had the power to elect U.S. senators) didn’t want to send someone to Washington who arguably was ineligible under the Fourteenth Amendment, so it passed over Vallandigham in favor of another candidate.

Although the Ohio legislature’s rejection of Vallandigham was for a U.S. Senate seat, the body could have blocked him from receiving the state’s electoral votes if he had been a presidential candidate. Vallandigham, in fact, was a significant participant at the 1868 Democratic presidential convention. If the party had wanted one of its most extreme anti-Reconstruction figures as its nominee, it could have picked Vallandigham. Section 3, like the rest of the Fourteenth Amendment, became operative in July 1868, before the presidential election that year. If the Democrats had nominated Vallandigham at the party’s convention, also in July, all pro-Reconstruction state legislatures would have been entitled to exercise their Article II power to make sure their electors did not vote for him.

In the end, Vallandigham was too controversial to be nominated, so we can’t say for sure how the election would have played out if the Democrats had been so bold. But we can say, because many at the time believed that “the Senate would not seat any man of [Vallandigham’s] war record,” as one historical account put it, that everyone in 1868 understood that state legislatures did not need Congress’s permission to exercise their constitutional powers to keep someone like Vallandigham out of federal office.

The authority state legislatures had in 1868 with respect to Vallandigham is exactly the same authority that Colorado today asserts with respect to Trump. Not all states might have exercised their Article II power against Vallandigham. But insofar as that divergence might be messy, it’s a consequence of the basic federalism built into the Electoral College system, as Colorado’s solicitor general, Shannon Stevenson, said at oral argument.

As messy as this kind of divergence in the presidential election process might be, it’s not nearly as messy—or dangerous—as what might happen after the election if Trump wins and Congress attempts to disqualify him then. If states have no power to enforce Section 3 without prior congressional permission, and assuming that the current Congress takes no action on the matter before the election, Trump’s candidacy will go forward without a definitive determination on whether he is eligible to become president on January 20, 2025. If he wins, Democrats in Congress—joined perhaps by GOP senators who have already voted to convict Trump for inciting insurrection—would almost certainly seek to disqualify Trump on January 6, 2025, potentially preventing his inauguration two weeks later. That would be an extremely fraught scenario, as mentioned by Murray at the oral argument. (He cited an amicus brief in which I participated, along with the lawyers Benjamin Ginsberg, Richard Hasen, and Michael Kimberly.)

The justices will conduct their own assessment of that risk. But I, for one, continue to fear the consequences if the Court defers the question of Trump’s eligibility.

Edward B. Foley is a professor at The Ohio State University Moritz College of Law, where he also directs its election law program. He is the author of Presidential Elections and Majority Rule: The Rise, Demise, and Potential Restoration of the Jeffersonian Electoral College.

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