The Case for Removing Trump From the Ballot Has a Fatal Originalist Flaw

Oral arguments in the Supreme Court for Donald Trump v. Norma Anderson last week exposed a historical issue that none of the excellent amicus briefs by historians anticipated. Briefs led by Jill Lepore and Vernon Burton convincingly show that the framers of Section 3 of the 14^th Amendment would have intended to make Donald Trump ineligible for the office of president. But the Colorado case is about eligibility for the ballot, not for office. The framers of Section 3 would not have considered that question because in 1866, ballots as we know them today did not exist.

That historical anomaly will make it easy for the Supreme Court to rule against Colorado. But if it does, it will punt on the more important question of Trump’s eligibility for office.

Understanding the full history here is critical. Official ballots printed by each state, listing the names of all candidates qualified to run, came into existence only with the adoption of the secret ballot later in the 19^th century. Prior to that time, no one had to qualify to appear on a ballot. Political parties, not states, printed them with only their candidates’ names. Party officials gave them to voters, who placed them in a ballot box. If voters wanted, they could create their own ballot and write in any candidate they preferred. State officials then tallied the ballots. The votes for people ineligible for office were simply not tallied. Those who felt that their votes had been incorrectly thrown out by local officials had to appeal to state officials or the courts.

An otherwise informative amicus brief by Yale law professor Akhil Reed Amar and his brother, University of California–Davis law professor Vikram Amar, demonstrates the pitfalls of neglecting this historical complication. The brief argues that federalism allows states to apply Section 3 of the 14^th Amendment differently when it comes to eligibility for ballots. But that might be the case only because in 1866 there was no question about eligibility for a ballot. Yet, in a New York Times op-ed headlined “The Supreme Court Should Get Out of the Insurrection Business,” Akhil Reed Amar claims that “in 1860, [Abraham] Lincoln was not on the ballot in every state.” But there were no individual “state ballots” to qualify for then, just party ballots.

Because the framers of Section 3 did not anticipate questions about eligibility for ballots, six Supreme Court justices will not have to violate their supposed textualist/originalist principles to rule against Colorado. They, like the other three justices, can rely on pragmatic arguments, backed by the historical claim that Section 3, like other provisions of the 13^th, 14^th, and 15^th amendments, altered U.S. federalism by putting restraints on the states.

As a result of the Reconstruction amendments, states cannot authorize slavery. They cannot deny people due process and equal protection. They can have different election laws but cannot deny suffrage to citizens on the basis of race, color, or previous condition of servitude.

Section 3 itself most obviously responded to Congress’ battle with President Andrew Johnson, who issued numerous pardons to ex-Confederates in exchange for oaths of loyalty. Without rescinding the president’s pardoning power, Section 3 limits it by placing a disability on even those who have been pardoned. But it also placed a limit on states’ power by prohibiting those who had taken an oath to support the Constitution and engaged in an insurrection from holding “any office, civil or military, under the United States, or under any State” (emphasis mine). A constitutional provision allowing the national government to interfere with who could serve in state militias or state governments was almost unprecedented.

But even though the Supreme Court can stay true to the intention of the framers of Section 3 by ruling against Colorado on eligibility for the ballot, doing so would leave unanswered the crucial question about Donald Trump’s eligibility for office. Who will decide that question and when?

Despite historians’ compelling demonstration that Section 3 applies to Trump, the framers offer little aid in answering those crucial questions. As much as they may have wanted Section 3 to apply to the future, in terms of applying it, their vision for enforcement focused on their present.

Congress could easily refuse to seat ineligible senators or representatives under Section 3 by invoking its constitutional authority to police its membership. By the time the 14^th Amendment was ratified, Congress had imposed military rule on all former Confederate states other than Tennessee. Military commanders could block those ineligible from taking state offices. Soon after military rule ended, as stipulated in Section 3, two-thirds of Congress had, with a few exceptions, such as Jefferson Davis, removed the imposed disability, rendering questions of enforcement going forward irrelevant.

Thus, although the framers intended for Section 3 to be self-executing, the history offers no guidance on how practically to disqualify Trump. Given the direction of oral arguments, the Supreme Court seems disinclined to let states throw out ballots for him after they are cast. It also seems reluctant to clarify the situation by ruling on his eligibility. If it refuses to take that responsibility, Congress would have to, when it meets Jan. 6, 2025, declare him ineligible to count electors, a move that seems politically inconceivable, especially if he wins the majority in the Electoral College.

Realistically, then, it is extremely likely that the intention of the framers of the 14^th Amendment will once again be betrayed. Nonetheless, to keep a historical perspective, it is important to remember that, whereas the Supreme Court’s rulings on the 14^th Amendment that discounted parts of history have usually been reactionary, in one case it was not. Brown v. Board of Education ruled that segregated schools violated the equal protection clause, even though its framers had allowed segregated schools in Washington.

But most justices on the Warren court believed in the doctrine of a “living Constitution.” Most justices on the Roberts court profess adherence to original intent. It is too soon to know, but in this case the Roberts court seems to have found a new way to handle an original intent it does not like: avoid ruling on it and claim that results of elections should be decided by voters, not judges.

Such judicial restraint might be better than the Supreme Court’s egregious interference in the contested 2000 election in the case of Bush v. Gore. But it does not confirm the original intent of Section 3.