TRUMP SHOULD STAY ON THE BALLOT

Next month, the U.S. Supreme Court will hear argument on whether or not Donald Trump is qualified to appear on the ballot in Colorado. Disqualification challenges have become a weapon used by Trump’s opponents to stop him from regaining power. Outside Colorado, a disqualification challenge succeeded in Maine. Challenges in Michigan, Minnesota, and California have failed. But depending on the Court’s ruling, there could be more.

The Supreme Court acted sensibly in accepting the Colorado case on an expedited basis. It would be chaotic to have a presidential election decided by different states following different disqualification criteria. It would also be dangerous to our democratic system.

The Colorado case will focus national attention on Section 3 of the 14^th Amendment, which reads:

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, 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. But Congress may by a vote of two-thirds of each House, remove such disability.

The Court will confront a number of issues:

  Does this disqualification language apply to the President? Note that it specifically mentions “Senator or Representative in Congress, or elector of President and Vice-President.” It also refers broadly to “any office, civil or military, under the United States, or under any State.” But it does not specifically mention the presidency itself.

  What constitutes an “insurrection”? Is a violent riot, like the one that occurred on January 6, sufficient? Or must there be an armed and organized attempt to overthrow the government, like the Bolsheviks storming the Winter Palace or the Confederates bombarding Fort Sumter?

  What does it mean to have “engaged” in insurrection? Is cheering from the sidelines sufficient? Or must there be personal participation in the activity?

All of these issues present interesting, if arcane, legal issues, the kind lawyers and jurists love delving into and debating. But if it chooses, the Supreme Court can reject Colorado’s attempt to keep Trump off the ballot for two simple and straightforward reasons.

First, Colorado (and Maine) failed to provide Trump with anything even approaching the kind of due process to which he was entitled in this important matter. Second, the question of whether Trump should be disqualified for having engaged in insurrection has already been decided in a trial before the U.S. Senate presided over by the Chief Justice. And he was acquitted. Neither Colorado, nor Maine, nor any state, has the right to retry him.

However one might feel about Donald Trump’s conduct on January 6, and regardless of what one might feel about his being on the ballot, it is indisputable that the Colorado supreme court and the Maine Secretary of State failed to provide him with any real opportunity to defend himself from the charge of engaging in insurrection. This failure was not necessarily malicious. Rather, it arose from the fact that both actions proceeded under statutory frameworks designed to resolve mundane ballot requirements, such as age and residency requirements. Those issues can be resolved expeditiously. Determining whether a presidential candidate can be disqualified from running because he violated the Constitution by engaging in insurrection, is different. No such disqualification has ever occurred before in our nation’s history. The issue facing Colorado and Maine deserved serious deliberation. It did not get it.

In Colorado, dissenting Justice Samour reviewed the procedural shortcuts used by the trial court, and summarized their deficiencies:

There was no basic discovery, no ability to subpoena documents and compel witnesses, no workable timeframes to adequately investigate and develop defenses, and no final resolution of many legal issues affecting the court’s power to decide the [challengers’] claim before the hearing on the merits.

In the absence of such procedures, designed to safeguard a defendant’s rights, the Colorado court relied on supposed “expert” witness testimony. For example, on the crucial issue of whether Trump “engaged” in insurrection, the court cited the testimony of one Professor Peter Simi, styled an expert on “political extremism.” According to the Colorado court:

Professor Simi reviewed [President] Trump’s relationship with his supporters over the years, identified a pattern of calls for violence that his supporters responded to, and explained how that long experience allowed [President] Trump to know how his supporters responded to his calls for violence using a shared language that allowed him to maintain plausible deniability with the wider public. (brackets in original)

So Trump and his supporters shared a secret language which only they – and gifted outsiders like Professor Simi – could comprehend. This kind of malarkey was not evidence. It was speculation about the supernatural.

With all its procedural infirmities, the Colorado case was a veritable Bill of Rights compared to the slapdash proceeding conducted in Maine.

Preliminarily, it’s worth noting that the adjudicating official in that proceeding, Secretary of State Sheena Bellows, is not a judge. Nor is she a lawyer. Nor is she an elected official. She is a state bureaucrat selected by the legislature. In addition to overseeing elections, she oversees the State Archives, the Bureau of Corporations, and the Bureau of Motor Vehicles. Secretary Bellows employed the same procedural rules that would be used to resolve a dispute over a driver’s license.

Late on Friday afternoon, December 8, challenges were filed. On Monday, December 11, the Secretary noticed a hearing for the coming Friday, December 15, thus giving the parties four whole days to prepare. On Wednesday, the parties were scheduled to exchange witness lists and exhibits. The exhibits were supposed to be posted on a Dropbox account, but due to a technical glitch, the principal challengers’ account was “inoperative.” So the Trump team did not receive their opponents’ exhibits until the hearing was actually underway.  (The Secretary’s ruling mentions, with apparent pride, that the copies of the exhibits were made available “with the assistance of my office.”)

In her ruling, the Secretary addressed these glaring due process deficiencies by noting that proceedings before the Secretary of State are governed, not by federal or state rules of evidence, but by the Maine Administrative Procedures Act. That Act, which is designed for regulatory matters, does not require that evidence be shared before a hearing.

And that would be fine – if the matter under consideration were an election issue involving age or residency requirements. Or a corporate filing. Or a DMV license. In fact, the image of the Secretary’s office staff rushing to prepare hard copies of the exhibits, to compensate for the challengers’ “inoperative” Dropbox account, might even have lent the proceeding an air of down-home Maine charm. If this were a routine matter.

But this was not a routine matter. This was a proceeding fraught with serious consequences. Maine is one of only two states (Nebraska is the other) which does not award its electoral votes on a winner-take-all basis. Instead, Maine awards two of its four electoral votes to the winner of the statewide vote, and one electoral vote to the winner of each of its two congressional districts. In 2020, Trump lost the state by nine points, but nonetheless received one of the state’s four electoral votes by carrying a district. If, as many expect, the 2024 election is close, a decision to bar Trump from the Maine ballot could affect the outcome.

Beyond these procedural infirmities, any state-level attempt to bar Trump from the ballot on the basis of his alleged engagement in insurrection should fail for the simple reason that Donald Trump has already been tried on that charge. And he was acquitted.

The second impeachment of Donald Trump was based on one, and only one, Article of Impeachment.  It was entitled “INCITEMENT OF INSURRECTION” and it reads:

The Constitution provides that the House of Representatives “shall have the sole Power of Impeachment” and that the President “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”. Further, section 3 of the 14th Amendment to the Constitution prohibits any person who has “engaged in insurrection or rebellion against” the United States from “hold[ing] any office … under the United States.” In his conduct while President of the United States—and in violation of his constitutional oath faithfully to execute the office of President of the United States and, to the best of his ability, preserve, protect, and defend the Constitution of the United States, and in violation of his constitutional duty to take care that the laws be faithfully executed—Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States. (emphasis added)

The trial of the charge of engaging in insurrection took place in the U.S. Senate. It began on February 9 and ended on February 13. The Chief Justice of the United States presided, and the one hundred members of the Senate served as jurors.

After the evidence was heard, the jurors voted. Under Article I, Section 3, Clause 6 of the Constitution, a 2/3 majority was required for conviction. The tally (57 for conviction, 43 opposed) was ten votes shy of the required number. Donald Trump was acquitted.

Permitting Colorado or any state to prevent Trump from appearing on the ballot because he engaged in insurrection would amount to a violation of  the 5^th Amendment to the Constitution, which bars the prosecution of any person for the same offense twice. This is called “double jeopardy.” The Supreme Court has held that the prohibition on double jeopardy applies whether the offense is a felony or a mere misdemeanor. The scope of the potential punishment doesn’t matter.

Under our dual-sovereignty system, the bar on double jeopardy does not prevent federal and state prosecutions of the same defendant for the same conduct, as long as such separate prosecutions are conducted under separate laws. In other words, a state may prosecute a defendant under its state law even if the federal government has already prosecuted him for the same conduct under a separate federal law. That is why Trump’s attempt to use the double jeopardy argument to thwart the Georgia state prosecution, which contains 13 charges of violating Georgia state law, will likely fail. His Senate trial was under federal law, while the Georgia prosecution is under different state statutes.

But the Colorado challenge to Trump’s right to appear on the ballot required trying Trump for the exact same offense – engaging in insurrection in violation of  Section 3 of the 14^th Amendment – on which he was tried by the Senate. The Colorado decision, and the subsequent and duplicative Maine decision, both expound at great length on how Trump supposedly violated Section 3.  But the Senate had already tried and acquitted Trump of the very same offense. Therefore, those state proceedings violated the constitutional bar on double jeopardy.

There are many reasons to oppose Donald Trump’s effort to reclaim the White House. Likewise, there are many reasons for the Supreme Court to reject the state-level efforts to keep Trump off the ballot. But in law, as in logic, the simplest path is often the best.

In this case, the simplest path for the Supreme Court is to reject Colorado’s disqualification attempt on the bases of due process and double jeopardy. And the simplest path for the voters is to reject or elect Donald Trump on the merits – and not on the contrived attempts to bar him from the ballot.