Ideologically Diverse Amicus Brief Urges Supreme Court to Address Merits of Trump Disqualification Case

An amicus brief by Prof. Ned Foley, Ben Ginsberg, and Prof. Rick Hasen in Trump v. Anderson. 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 electoral-vote 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 Amendment 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? 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…