Earlier this week, I put up a post explaining why a criminal conviction for insurrection isn’t required for Donald Trump to be disqualified from running for president under Section 3 of the 14th Amendment. Conservative political commentator Conn Carroll has responded to me in a column published by the Washington Examiner. I remain unpersuaded. Carroll is confused about jurisdictional issues. And even if he were right about them, it still would not prove that a criminal conviction is necessary.
Carroll’s main point is that Colorado courts lacked jurisdiction to consider the Section 3 issue:
Carroll forgets that Colorado courts unquestionably do have jurisdiction over the issue of whether a candidate is eligible to appear on the ballot in Colorado elections (in this case, the Colorado Republican primary, in which Trump is a candidate, and which is administered by the state government). As the Colorado Supreme Court explained in its ruling, state law requires candidates on the ballot to be legally eligible to hold the office they are running for. And state courts can consider any potential legal grounds for ineligibility—including Section 3 of the Fourteenth Amendment.
In hearing cases, state courts routinely consider relevant events that occurred outside the state. If I am charged with committing murder in Colorado, the state can introduce a recording of me plotting the murder while located in another state. This applies to issues of candidate eligibility, as well. For example, in 2016, state courts considered claims by Trump supporters that Ted Cruz, one of Trump’s rivals for that year’s GOP nomination, was ineligible for the presidency because he was not a “natural born” citizen (Cruz was born to US-citizen parents while they were living in Canada). It made no difference the relevant event (Cruz’s birth in Canada), occurred outside of the states whose courts heard the cases.
Ultimately, courts in New Jersey and Pennsylvania concluded Cruz was eligible, and ruled against the Trump supporters. But no one doubted the courts had jurisdiction to hear their claims.
Even if Colorado courts did lack jurisdiction, it doesn’t prove that a criminal conviction was necessary. It would just mean the issue would have to be settled by some other set of courts or officials (perhaps federal courts).
Carroll also has a second objection:
As I pointed out in my earlier post, none of the ex-Confederates disqualified in the aftermath of the Civil War were convicted of any criminal offenses related to their participation in the Civil War. This reinforces the point that a criminal conviction isn’t required under the original meaning. Some of them did, however, have their disqualifications reviewed by state courts (which upheld them).
Whether state officials can disqualify candidates without going to court first depends on state law. Different states have different rules. It is not unusual for nonjudicial officials to make initial determinations on civil law issues. Police officers do that all the time when it comes to traffic violations, for example; ditto for state and federal tax collection agencies assessing penalties for tax law violations.
But even those states where executive officials can initially act on their own still allow candidates to challenge disqualification decisions in court. As I have pointed out before, this is an important constraint on skullduggery by partisan officials. And even if such misbehavior is more of a risk than I think, it doesn’t follow that a criminal conviction is a constitutional prerequisite to disqualification. It would just mean that state governments should pass legislation limiting officials’ discretion. Congress could potentially do so, as well, using its powers under Section 5 of the Fourteenth Amendment. Unless it does so, however, states can use their legal systems to enforce Section 3, just as they enforce other constitutional eligibility requirements for office.