Seven Former state supreme court justices, including several elected or appointed by Republicans, filed a brief urging the Supreme Court to affirm Trump’s Colorado disqualification.
Why Are Former State Supreme Court Justices Supporting Trump’s Disqualification?
The seven former justices wrote in an amicus brief to the Supreme Court:
The Supremacy Clause requires state courts to enforce federal constitutional provisions where they apply to state-law causes of action. And state courts have continuously enforced Section 1 of the Fourteenth Amendment—including the Equal Protection and Due Process Clauses—since Reconstruction. In this respect, Section 3, like the presidential qualifications established in Article II, operates like Section 1: state courts do not require congressional permission to enforce it.
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Under the Electors Clause, states’ plenary power to appoint presidential electors allows states to condition appointment on their voting only for constitutionally eligible candidates. This necessarily includes power to decide whether candidates are eligible. Neither the Twelfth nor the Twentieth Amendment, nor any other constitutional provision, commits this determination exclusively to Congress or strips states of their power.
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State courts have a particular interest in vindicating Section 3’s purpose: protecting the republic from insurrectionists returning to power. Trump exemplifies this risk by repeatedly threatening judges, judicial employees, and others involved in the court system. Declining to apply Section 3 for fear of Trump-incited mob violence would not prevent that violence; it would simply shift its burden to thousands of justices, judges, and court staff, and would invite more chaos, violence, and insurrection.
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This Court must not be swayed by fear of mob violence that Trump may incite upon its affirming Colorado’s decision. The Constitution and the rule of law demand enforcing Section 3. The arguments for reversal are political arguments, not based on the law, but rather on threats and fears of supposedly adverse consequences that this Court—bound by the plain text and original public meaning of the Constitution—must not indulge. Failing to enforce Section 3 out of fear of reaction by Trump and his supporters would prostrate the Constitution before a mob.
Who Are The 7 Former State Supreme Court Justices?
The seven former state supreme court justices who signed the amicus brief are:
1). Paul H. Anderson (Associate Justice, Minnesota Supreme Court, 1994-2013);
2). Fernande Duffly (Associate Justice, Massachusetts Supreme Judicial Court, 2011-2016);
3). James Exum, Jr. (Associate Justice, North Carolina Supreme Court, 1975-1986; Chief Justice, 1986-1994);
4). Joseph Grodin (Associate Justice, California Supreme Court, 1982-1987);
5). James Nelson (Associate Justice, Montana Supreme Court, 1993-2013);
6). Robert Orr (Associate Justice, North Carolina Supreme Court, 1995-2004);
7). Peggy Quince (Associate Justice, Florida Supreme Court, 1999-2008 and 2010-2019; Chief Justice, 2008-2010)
The seven justices served on courts that stretch from Massachusetts to California. These are not all liberal justices. Several of them were appointed by or elected to the court as Republicans.
Trump’s Disqualification Is A Bipartisan Issue
Many of the voters who are challenging Trump’s ballot status are Republicans. Some conservative legal experts and scholars believe that Trump is disqualified under Section 3 of the 14th Amendment. Contrary to what Trump and his supporters claim, the challenges to his ballot status are not a Democratic plot being orchestrated by President Biden. The ballot challenges are coming from voters who do not believe that a man who tried to overthrow the United States government is legally allowed to appear on the ballot.
If the Supreme Court upholds Trump’s Colorado disqualification, the door will be open for ballot challenges to accelerate as each state would have to make its own decision about including Trump on the ballot.
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