We have been following this debate about the applicability of Section 3 of the 14th Amendment from the beginning. In September we presented the arguments whether or not Section 3 is still in force (Section 3 of the 14th Amendment) and followed up in November (Section 3 of the 14th Amendment - Part 2) discussing the Colorado and Minnesota cases (Maine hadn’t happened yet). When the Supreme Court agreed to hear President Trump’s challenge to the Colorado Supreme Court removing him from the primary ballot we published Section 3 of the 14th Amendment (Update). Now that the Supreme Court has issued its opinion, here is our final(?) post on Section 3.
Donald J. Trump, Petitioner v. Norma Anderson, et al.
The Colorado Supreme Court had ruled on December 19, 2023 that Donald Trump’s name should not appear on the Republican Primary ballot and that any write-in votes for him should be disregarded. The US Supreme Court accepted Donald Trump’s appeal of that ruling and held oral arguments on February 8.
As you will have certainly heard, on Monday, March 4, 2024, the day before the Super Tuesday Primaries, the Supreme Court ruled in Trump’s favor, reversing the Colorado Supreme Court 9-0. They ruled
Because the Constitution makes Congress, rather than the States, responsible for enforcing Section 3 against federal officeholders and candidates, we reverse.1
Having listened to the oral arguments on this case, I was not at all surprised when the Supreme Court ruled against Colorado, and not particularly surprised that it was 9-0. All of the Justices closely questioned the lawyers for both sides about the authority of States to determine which candidates for national office can be on the ballot in each State.
The Colorado case started when four Republican and two unaffiliated voters, supported by the group Citizens for Responsibility and Ethics in Washington (CREW),2 had filed suit demanding that the Colorado Secretary of State not include Trump‘s name on the ballot. CREW also filed amicus briefs in Wisconsin and Michigan in support of those States keeping Trump off the ballot, asserting that Section 3 of the 14th Amendment is self-executing.
Based on the landing page and news tab on their website, CREW is an organization with opposition to Donald Trump as a primary focus.
Following the 9-0 SCOTUS ruling on March 4, CREW’s President Noah Bookbinder issued a statement (buried deep in the website after pages asking for donation to help them oppose Trump and a dated story about Colorado barring Trump from the ballot) that “While the Supreme Court allowed Donald Trump back on the ballot on technical legal grounds, this was in no way a win for Trump.”3 That statement should be put in the dictionary as the definition of “political spin.”
The Supreme Court Ruling
There were in fact three separate opinions. The majority opinion (which was unsigned but was from Roberts, Thomas, Alito, Gorsuch and Kavanaugh), a partially concurring opinion by Barrett and a partially concurring opinion by Sotomayor, Kagan and Jackson. While all nine Justices agreed with the primary finding that reversed the Colorado Supreme Court (Part I of the majority opinion), four of the Justices had a different opinion on Part II.
That is why you may read that the opinion was 5-4, which is disingenuous because the ruling on the issue at hand, the States inability to remove Trump (or any “insurrectionist”) from the ballot in that State, was 9-0. The majority issued an opinion that also ruled on the federal process that enforces Section 3 (Part II of their opinion) and the only objections made by in the two opinions by the other four Justices was that the majority had unnecessarily included Part II.
Part II-A of the majority opinion explained that the Fourteenth Amendment “expand[ed] federal power at the expense of state autonomy” (page 4), altering the balance between federal and state power. Section 1 bars States from “'depriv[ing] any person of life, liberty, or property, without due process of law” (page 4). They go on to explain that Section 5 gives Congress the “‘power to enforce’ these prohibitions, along with other provisions of the Amendment, ‘by appropriate legislation’” (page 4). After reviewing the record of the debate when the Amendment was framed, they conclude that Section 5 gives Congress the responsibility of seeing that all sections of the amendment are carried out, requiring the passing of a bill to enforce the disqualification (of Section 3).
Part II-B of the majority opinion contends that “States may disqualify persons holding or attempting to hold state office. But States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.” (page 6) They also contend that only Congress can enforce the Amendment through legislation (pursuant to Section 5). After reviewing a number of cases and considering the potential impacts of different states coming to different conclusion regarding candidates for federal office, they conclude that “responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States.” (page 12)
They conclude their opinion by stating that “[a]ll nine Members of the Court agree” that the “judgement of the Colorado Supreme Court therefore cannot stand” (page 12) while also stating that they understand that there are two other opinions that “object only to our taking into account the distinctive way Section 3 works and the fact that Section 5 vests in Congress the power to enforce it.”
Justice Barrett in her separate opinion objected only to the inclusion of Part II-A in which the majority stated that Congress would be required to act. In choosing to not join the majority in Part II-A, Barrett stated that
I agree that States lack the power to enforce Section 3 against Presidential candidates. That principle is sufficient to resolve this case, and I would decide no more than that.
Barrett ended her one-page opinion with the statement that
All nine Justices agree on the outcome of this case. That is the message Americans should take home.
Justices Sotomayor, Kagan and Jackson wrote a six page opinion, concurring in the judgement, but objecting to Part II (A and B), stating that the majority opinion went unnecessarily beyond the simple reversal of the Colorado Supreme Court, quoting from Bush v. Gore (2000), that
“What it does today, the Court should have left undone.”
They ended their opinion with the statement that
Although we agree that Colorado cannot enforce Section 3, we protest the majority’s effort to use this case to define the limits of federal enforcement of that provision. Because we would decide only the issue before us, we concur only in the judgement.
Ruling Eliminates Impact on Primaries
So the Supreme Court 9-0 ruling reverses the Colorado Supreme Court decision denying Donald Trump a place on the Republican Primary ballot in Colorado. Fortunately, the Colorado Supreme Court decision provided for a stay of the decision if the case was appealed to the US Supreme Court, so Trump’s name was on the ballot for the Republican Primary on Super Tuesday (only one day after the Supreme Court ruling). Trumps name was also included on the printed ballots in Maine, which also votes on Super Tuesday.4
You can read and/or download the ruling on the Supreme Court website: https://www.supremecourt.gov/opinions/23pdf/23-719_19m2.pdf
https://www.citizensforethics.org/
You can use https://www.citizensforethics.org/news/ to go straight to the statement (it’s on the left, down the page) OR you can use the prior link to the home page and find your way to it through the fundraising pitches and old headlines.
In addition to Colorado, both Maine and Illinois had ruled that Trump was ineligible to be on the Primary ballots in their States. Maine’s Secretary of State issued a revised ruling on Monday allowing Trump to be eligible the next day. The Illinois Primary is on March 19.