From an amicus brief by Prof. Ned Foley, Ben Ginsberg, and Prof. Rick Hasen in Trump v. Anderson; for more on the amici, see the end of the post:
Amici often do not see eye to eye on matters of law or policy. But they join together in this brief to make a single, urgent point: A decision from this Court leaving unresolved the question of Donald Trump’s qualification to hold the Office of President of the United States under Section 3 of the Fourteenth Amendment until after the 2024 election would risk catastrophic political instability, chance disenfranchising millions of voters, and raise the possibility of public violence before, on, and after November 5, 2024. And the grounds for avoiding the merits are not credible: Colorado manifestly had the authority to determine Mr. Trump’s legal qualification for the office he seeks, and this Court has jurisdiction to review that federal-law decision on its merits.
To punt on the merits would invite chaos while risking great damage to the Court’s reputation and to the Nation as a whole. The country is more polarized today than at any other time in living memory—certainly more than in December 2000, when this Court last decided a case with a direct impact on the outcome of a presidential election. Controversy over the 2020 election led millions of Americans to doubt the integrity of the electoral system and ultimately culminated in the storming of the
U.S. Capitol on January 6, 2021. Political tensions have not eased in the time since. Quite the opposite: political discourse has stoked further public skepticism of the electoral system since January 2021. Amici thus file this brief, not only to demonstrate that the Court can reach the merits of Mr. Trump’s qualification under Section 3, but that it should do so, or else risk political instability not seen since the Civil War.
The possible scenarios if the Court fails to resolve the Section 3 question once and for all are alarming. If Mr. Trump wins an electoral-vote majority, it is a virtual certainty that some Members of Congress will assert his disqualification under Section 3. That prospect alone will fan the flames of public conflict. But even worse for the political stability of the Nation is the prospect that Congress may actually vote in favor of his disqualification after he has apparently won election in the Electoral College. Neither Mr. Trump nor his supporters, whose votes effectively will have been discarded as void, are likely to take such a declaration lying down.
Even if Mr. Trump did willingly stand aside, it is wholly unclear who would be inaugurated as President on January 20, 2025—would it be Mr. Trump’s running mate, pursuant to the Twentieth Amendment? Would it be Mr. Biden, pursuant to a Twelfth Amendment election in the House? Or would it be some alternate candidate thrown into the mix in the heat of the political battle? The chance that there would be no clear answer come Inauguration Day 2025—and that the country thereby would be thrown into a possibly catastrophic constitutional crisis—is disturbingly high….
Amici take no position on the question whether Mr. Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. Reasonable arguments can be made on both sides of that question, and those issues are amply briefed by the parties and other friends of the Court. Amici offer their views here for a more basic point: The Court has the power to resolve the question presented, and it must do so now….
We appreciate fully that the Members of this Court would prefer not to be thrust into the midst of a presidential election like this. But there is no avoiding it. “[W]hen a federal court has jurisdiction, it also has a virtually unflagging obligation to exercise” its authority to resolve the legal questions put to it. Mata v. Lynch, 576 U.S. 143, 150 (2015) (cleaned up). A decision vacating the lower court’s judgment on procedural or jurisdictional grounds, thus reinstating Mr. Trump on the ballot without deciding the merits of the disqualification question, would not reflect an admirable judicial modesty; it would instead mark a dangerous refusal by this Court to do its duty….
It is unavoidable that the Court’s decision in this case will influence the course of the 2024 election. And it would be a gamble to assume that President Biden will win reelection. If he does not, or if it is unclear whether he has won, the Court will be inviting, and almost surely thrusting itself into the middle of, post-election tumult and potential public violence.
Any contention that the time and place for determining Section 3’s applicability is on January 6, 2025, after the election is concluded, invites disaster for the Nation. It is of course speculation how exactly the election would play out with an unresolved Section 3 cloud hanging over Mr. Trump’s head, but none of the options is tolerable. Virtually all of them would lead to serious conflict both within Congress and among the general public. Consider the following very realistic scenarios.
[a.] Imagine Mr. Trump wins an electoral-vote majority, and Members of Congress assert Section 3 disqualification
If Mr. Trump ostensibly wins the Electoral College, it is a certainty that some Members of Congress will invoke Section 3 in an effort to prevent him from returning to the presidency. They will argue that only a majority of both houses is necessary for disqualification and that a majority of both houses already made a determination that Mr. Trump is disqualified under Section 3 when the House impeached him over the January 6 incursion and 57 senators voted to convict.
Whether or not this effort is successful, it would risk serious political instability between November 2024 and January 2025. It is admittedly impossible to predict with
confidence exactly what additional dominoes would fall if Mr. Trump’s qualification is publicly tested in Congress. It is enough to acknowledge that the potential for violence—targeted against individual lawmakers and the government generally—is very real. That potential would be avoided by a pre-election answer in this case.
In saying this, we acknowledge that if the Court were to affirm the Colorado Supreme Court’s decision that Mr. Trump is disqualified from the ballot, public discord may also follow. But the degree of civil unrest from a pre-election disqualification is certain to be far less than following a disqualification after Mr. Trump has won a majority of electoral votes. It is much harder to accept having something taken away than it is to be denied the thing in the first place—a truism this Court has previously recognized in the electoral context. See LULAC v. Perry, 548 U.S. 399, 439-440 (2006).
[b.] Imagine Mr. Trump wins an electoralvote majority and Congress declares him disqualified
Now suppose that a majority of both houses actually votes in favor of disqualification, and Mr. Trump—ostensibly having won a majority of electors—is declared ineligible to hold the office. The existing constitutional and statutory rules applicable in such a situation are dangerously unclear, and the risk of violence and instability would be overwhelming.
As a threshold point, there is no guarantee that Mr. Trump would accept a congressional disqualification. He likely would not—and, as he did on January 6, 2021, he may invite his supporters to resist with violence.
But even before that, it is unclear how a disqualification by Congress would play out. The Twelfth Amend-
ment calls for a Joint Session to conduct a count of electoral votes, but there is no playbook for when the candidate receiving a majority of votes is declared ineligible to occupy the office. For instance, if the votes for that candidate are nullified, denying any candidate a majority of the vote, would the election be sent to the House of Representatives under the Twelfth Amendment?2
The Electoral Count Reform Act of 2022 suggests so. As amended, 3 U.S.C. § 15(d)(2)(B)(ii)(II) permits objections to electoral votes on the ground that they are “not
* * * regularly given.” The term “not regularly given” historically has been understood to encompass electoral votes cast for a person who is not eligible to hold the office. See Derek Muller, Electoral Votes Regularly Given, 55 Georgia L. Rev. 1529, 1537 (2021).
The statute specifies that electoral votes “shall not be counted” if a procedurally proper objection is sustained by both the House and the Senate. 3 U.S.C. § 15(e)(1)(B). But it does not appear to permit the subtraction of votes invalidated as “not * * * regularly given” from the denominator for purposes of calculating a majority share of “the whole number of electors.” See id. § 15(e)(2). If that is correct and Mr. Trump receives the majority of all electoral votes, his disqualification would mean that no qualified candidate receives a majority.
TheelectionthuswouldbesenttotheHouseunder theTwelfthAmendment,whichspecifiesthat”ifnoperson [wins a] majority” in the Electoral College, “the House of Representatives shall choose immediately, by ballot, the President.” If Mr. Biden were the only other candidate who receiveselectoralvotes,hewouldbe the onlycandidatetheHousecouldselect.Hethuswouldbe declared President-elect, despite that Mr. Trump will have won a majority of electoral votes cast.
Such an outcome, although mandated by the plain terms of 3 U.S.C. § 15(e) and the Twelfth Amendment, would create two alarming problems. First, and perhaps more obvious, it would rile the Nation for the House to install in the presidency the opponent of the candidate who had won a majority of the electoral votes. Second, it would appear to place the ECRA and the Twelfth Amendment in conflict with the Twentieth Amendment, which provides that “the Vice President elect shall act as President” if the President-elect “shall have failed to qualify” to take the office by Inauguration Day.
All of this would leave it dangerously unclear who, following a disqualification of Mr. Trump, should serve as President. Throw into the mix Mr. Trump’s certain refusal to accept any disqualification by Congress, and there wouldbenowaytoknowwhoisentitledtoactasPresidentandcommander-in-chiefoftheArmedForcesstartingatnoononJanuary20.Theconsequencesofthatuncertainty would be existentially perilous to the United States, and they must be avoided if at all possible.
[c.] Imagine no candidate wins an electoralvote majority and the House declares Mr. Trump disqualified
Finally, imagine a less likely but still plausible scenario in which a third party candidate joins the race and wins sufficient electoral votes to deny any one candidate a majority in the Electoral College. Or similarly, imagine a 269-269 Electoral College tie between Mr. Trump and Mr. Biden. Here, the election would be sent the House under the Twelfth Amendment, and the question of Mr. Trump’s disqualification under Section 3 could arise not just once, but twice: first in the Joint Session for counting the electoral votes, and then in the House during its Twelfth Amendment proceedings.
In this case, suppose one-fifth of each chamber signs a Section 3 objection in the Joint Session, triggering separate votes in each chamber under the ECRA. 3 U.S.C. § 15(d)(2). Now suppose that the House votes to sustain the objection, but the Senate does not. Under the ECRA, the objection would fail and Mr. Trump’s electoral votes would be counted. At the end of the count, however, the election would proceed to the House under the Twelfth Amendment, where each State delegation is afforded a single vote.
To start, the House would need to establish rules for conducting the election. See U.S. Const. art. I, § 5, cl. 2 (“Each House may determine the rules of its proceedings.”). Democrats in the House would have a partisan incentive to adopt a rule provision first requiring a majority vote on each candidate’s qualification to hold office. If they held a majority of the House, Democrats could sustain an objection to Mr. Trump’s candidacy on Section 3 grounds and exclude him from the ballot in its Twelfth Amendment election.
This, too, would introduce a major constitutional crisis. Mr. Trump and his supporters may then contend that the House is not empowered to disqualify a candidate for President without the concurrence of the Senate. Democrats may alternatively contend that the majority of the House has the constitutional power to determine its own rules, as long as those rules permit each state delegation a single vote in the Twelfth Amendment election.
How would this constitutional crisis be resolved? Would the Court be called on to resolve the dispute, despite its nakedly political valence? Or would the tribal politics of the day invite resolution of the disagreement by violence? We all should shudder at that possibility. And the risk of this outcome—along with all the other deeply troubling scenarios like it—would be significantly reduced by this Court’s resolution of the Section 3 question now, before the 2024 general election takes place.
The situation now is more perilous than in 2000, and putting off a decision (as it did then) would risk disenfranchising voters
Finally, it is worth contrasting the current situation with the aftermath of the 2000 election. As Florida conducted its recounts and litigation swirled, this Court initially returned the case to the Florida Supreme Court with the suggestion that it consider the question of whether Florida’s procedures were constitutional. Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000). This unanimous punt kept the Court temporarily on the sidelines as the recount process and litigation continued; depending upon how the recount went, it was conceivable that this Court would avoid weighing in. Alas that was not to be. Bush v. Gore, 531 U.S. 98 (2000).
This time, however, kicking the can down the road would be far more fraught for the country. There is every reason to believe that disqualification challenges will continue to proliferate if this Court fails to give guidance. In the meantime, voters who cast their votes for Mr. Trump risk disenfranchisement for supporting a candidate who may later be held ineligible for office. Because they won’t get a do-over, these voters deserve to know now whether their ballots for Mr. Trump will be counted.
Further, requiring Congress to take up the issue in an inherently political process, on the fourth anniversary of the U.S. Capitol riot, would be a tailor-made moment for chaos and instability. The pressure on Congress from all sides would be enormous, as would be the temptation to resolve the disqualification question not as a matter of the legal or factual merit, but as an exercise of political power. This Court stands between the potentially disastrous turmoil that would result and a comparatively peaceful election administered consistent with the Constitution and the rule of law. It should not let this opportunity to stave off political instability pass….
Here’s a description of the amici:
Edward B. Foley is the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and director of the election law program at The Ohio State University Moritz College of Law. He is a current Guggenheim Fellow and, for the Spring 2024 term, a Distinguished Visitor at the University of Arizona James E. Rogers College of Law. Among his many publications is Presidential Elections and Majority Rule (2020), which explores the long-forgotten philosophical premises underlying the post-Twelfth Amendment Electoral College. The second edition of his seminal book, Ballot Battles: The History of Disputed Elections in the United States, will be released in spring 2024.
Benjamin L. Ginsberg has spent his career working in the trenches of Republican politics. He practiced law for 38 years before retiring in 2020. During that time, he represented numerous political parties, political campaigns, candidates, members of Congress and state legislatures, governors, and others in matters including federal and state campaign finance laws, redistricting, ethics and gifts rules, pay-to-play laws, election administration, government investigations, communications law, and election recounts and contests. He represented four of the past six Republican presidential nominees (including, through his former law firm, President Trump’s 2020 campaign). He played a central role in the 2000 Florida recount. Mr. Ginsberg also co-chaired the bipartisan 2013 Presidential Commission on Election Administration.
Richard L. Hasen is Professor of Law and Political Science at UCLA School of Law, where he directs the Safeguarding Democracy Project, which aims to preserve free and fair elections in the United States. Professor Hasen is an internationally recognized expert in election law, and author of many books on elections and election law including, most recently, A Real Right to Vote (Princeton University Press 2024). From 2001-2010, he served as founding co-editor of the quarterly peer-reviewed publication, Election Law Journal. He is the author of over 100 articles on election law issues, published in numerous journals including the Harvard Law Review, Stanford Law Review and Supreme Court Review….
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