Earlier this week, the U.S. Supreme Court issued a 9-0/5-4 decision in Anderson vs. Trump — the Section 3 case out of Colorado.  The majority opinion was a textbook example of the problem with originalism as the three opinions attempted to divine what the framers of the Fourteenth Amendment would have wanted a court looking at this issue to do.  The opinion was NOT a textualist opinion.  Instead, it was an ahistorical attempt to reason how the Congress that proposed (and the state legislatures that ratified) the amendment would have thought the rule would be for this type of case.

To understand the problem,  we first need to understand the “real” world of the 1860s.  Elections were run differently back then.  Today, every state uses a variation of the “Australian ballot.”  The essence of the Australian ballot is a pre-printed unmarked ballot containing all of the names of all of the candidates for all of the offices which the voter marks in the voting booth.  Prior to the adoption of the Australian ballot, depending on the state and location, votes were either public or involved a paper ballot.  In states with paper ballots, “party” newspapers (or the party itself) printed the party’s “ticket” — a ballot with all of the offices with only that party’s candidate for the office listed.  In other words, candidates did not file for office with the election authority prior to the election, and there was no official ballot.  Thus, even when the local party put forward an ineligible, there was no means to disqualify a candidate before that candidate won.

In this type of system, by necessity, any challenge to the eligibility of a candidate had to come after the election.  There were two ways to challenge the eligibility of candidate/office holder.  First, one of the other candidates could file an election challenge (assuming that state law permitted such a challenge).  While, in some states, this might have been a viable method  for challenging a local official, it works less well (even today) for those elected to state legislatures and federal positions.   In many states for the state legislature and for Congress, the final say on the validity of election results rests with the legislative body (either Congress or the respective state legislature).  As we saw back in 2008, even on an expedited basis, there is not enough time for an election dispute to go through the court process before the new term begins.  Not surprisingly, in the 1860s and 1870s, if a former Confederate were elected to Congress, Congress handled the matter by not seating the new member of Congress rather than state courts resolving the issue.  As there was never an ineligible person who received any electoral votes for president, there simply is no historical precedent for how Congress would have handled that issue.

The alternative method for challenging the eligibility of a person elected to office is by a procedure known as “quo warranto.”   Today, at least, this procedure is brought by a state official (the local prosecutor or the state Attorney General).  Of course, the late 1860s was well after the decisions of the Marshall court establishing that the Supremacy Clause means what is says, and that state court would be expected to apply Section 3 in a quo warranto proceeding (or be subject to U.S. Supreme Court review).  The problem that the U.S. Congress would have recognized is that state quo warranto would depend on state actors.  If former Confederates gained the positions of power in a state, there might not be any non-Confederate to bring the quo warranto.  As such, there might need to be some federal actor who could intervene.  Section 5 permitted Congress to pass laws authorizing some federal official to challenge state officials (which Congress soon did).

So now, we do have an official ballot, and that permits a pre-election challenge to the candidates.  But in this regime, what would the Framers of the Fourteenth Amendment have wanted to happen in this situation?  Because the Framers did not face this possibility, there is no way of knowing what they wanted.   And trying to reason from history (as the majority does) is simply making up a story to support the desired conclusion.  From structural reason, and the chaos that it would cause, it makes sense to not allow this type of challenge in presidential elections in state court.   But that is structure rather than something that was clearly in the minds of anybody involved with drafting or approving the Fourteenth Amendment with only a stray comment or two by members of Congress about whether Section 3 applies to the presidency.  If the challenge has to come in federal court, a system can be established so that one district court gets to hear that challenge to avoid inconsistent rulings from state to state.  The presidency is different from even congressional elections because the vote takes place in multiple states.  (Of course, the U.S. Supreme Court decision also applies to Congressional elections in one of the several actions that go further than is needed to decide this issue.)

The real problem with the decision is the dicta (legally any statement that is not necessary to decide the issues presented).  The sole issue presented by this case was whether a state court could disqualify a presidential candidate.  Whether a state court can disqualify a congressional candidate and who at the federal level could disqualify any candidate (and how such a federal actor would do so) was not presented by the case.  And this is what the four justices concurring in the judgment noted in their opinions.  The majority, besides holding that state courts lack authority over this issue, suggested two things.  First, anything that happens — whether this year or in the future — will require some type of Congressional action.  That seems clear from the holding that state courts lack the authority to disqualify a presidential candidate.

The second are the suggestions about what it would take for valid Congressional action.  The five justices suggest that there are some rules that govern such disqualification.  The majority opinion implies — but does not hold — that it will take actual legislation.  It implies that Congress can’t simply vote that a person is ineligible.  That implication is historically wrong.  Congress has barred several representatives from serving based on Section 3 without any formal process.

As far as legislation (or some type of resolution by Congress in connection with counting the electoral vote in January 2025), the majority suggests that any such process raises due process issues.  While, form a “fairness” standpoint, the due process concerns noted by the majority are valid, these suggestions are also contrary to history and what the framers of the Fourteenth Amendment did when faced with this issue.   There was no judicial or quasi-judicial proceeding to determine if the challenged members did support or engage in an insurrection.  Instead, the majority of the respective House just declined to seat the member (which is their absolute right under Article I of the Constitution and no court until this past week has suggested that the due process clause of the Fifth Amendment limits that right).   Put simply, this part of the majority opinion is pure judicial activism — making up rules that are not supported on either textualist or originalist grounds.  But, we have gotten used to judicial activism by the conservative justices over the past several years.

There are no good answers.  Section 3 is designed to prevent those who would engage in a coup or rebellion from holding federal office.   But that power also allows an anti-democratic majority to just exclude opponents like happens in Iran.  If we were starting from scratch without an insurrectionist posed to be the nominee of one of the two parties, it might be possible to devise an appropriate mechanism.  But, it is unlikely that, in an election year, when such an action would clearly apply to one of the two candidates, that a bill establishing such a procedure has any chance of passing.

To the extent that there is interest in the future, in such a bill, I would offer these humble suggestions.  First, any such actions should be brought in the District Court for the District of Columbia.  Second, the number of actors who could bring such a case should be limited (perhaps to state Attorney Generals or state election officials).  To limit the number of such cases, an unsuccessful challenger should have to pay the candidate’s legal bills (perhaps requiring a finding that the challenge is brought in bad faith).  Third, perhaps, this case should be heard by a multi-judge panel with an expedited appeal directly to the U.S. Supreme Court.