Law Professor in NY Times: Let People Decide on Trump

In light of the attempts across the U.S. to disqualify Donald Trump from 2024 presidential primary ballots, a law professor argued in The New York Times that the basis for Trump's removal is ambiguous "at best" and that voters should be allowed to "make their own decision" about the former president.

Maine's secretary of state on Thursday ruled that Trump will be ineligible for the state's primary ballot under Section 3 of the 14th Amendment — a decision that will likely be appealed to the state's Supreme Court.

In a close decision on Wednesday, the Michigan Supreme Court ruled that Trump can stay on the primary ballot. However, the judges left open the possibility of a future challenge to him being included on the general-election ballot.

Thus far, the Colorado Supreme Court's ruling that booted Trump from the primary ballot is the only challenge that has reached the U.S. Supreme Court.

According to New York Times contributing opinion writer Kurt Lash, a professor at the University of Richmond School of Law, the Supreme Court should take up the case and overturn the Colorado high court's ruling, for a reason cited by the Colorado judges in an earlier, unrelated case.

In a previous decision, the Colorado court found that Section 3 of the 14th Amendment should be interpreted "in light of the objective sought to be achieved and the mischief to be avoided."

Lash noted that, in the case of Trump appearing on the ballot, the Colorado Supreme Court didn't take its own advice.

In his opinion piece published Friday, Lash lays out the historical context for Section 3 and examines what congressional lawmakers were trying to achieve with its passage.

"When Congress passed the 14th Amendment, there wasn't a person in the Senate or House who worried about loyal Americans electing a former rebel like Jefferson Davis as president," Lash wrote. "Instead, Republicans feared that the leaders of the late rebellion would use their local popularity to disrupt Republican Reconstruction policy in Congress or in the states. Section 3 expressly addressed these concerns and did so without denying loyal Americans their right to choose a president."

While the debate has focused on whether the president is an "officer" who takes an "oath," Lash observed that "neither scholars nor courts" have homed in on the first part of Section 3.

"The threshold issue is whether the framers and ratifiers thought that the president holds a 'civil' office 'under the United States.' This is a much more specific and historically difficult question," Lash said.

Lash noted that Section 3 is concerned with state-level decision making and addresses three positions – the Senate, the House. and state-selected presidential electors – where leading rebels might use their popularity to thwart Republican-led Reconstruction policy.

Although it's possible that the framers meant for Section 3 to include the office of the president by implication, "[i]t would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers," Lash said.

Doing so would be "remarkably negligent," he said, as it was understood that the phrase "civil office under the United States" did not refer to the office of the president, "according to longstanding congressional precedent and legal authority."

Citing a congressional precedent known as "Blount's Case," Lash explained that the offices of president, senator and representative were not civil offices – they were the U.S. government.

"The phrase 'civil office under the United States' referred to appointed offices," he wrote in his piece.

In addition to "legal authority," Lash stated that common sense can be used to understand the text of Section 3.

It "is structured in a manner that moves from high federal office to low state office, and the apex federal political offices are expressly named," he said.

Former Attorney General Reverdy Johnson said that "the specific exclusion in the case of senators and representatives" caused him to initially assume that the framers excluded the office of president. Johnson later "accepted a colleague's suggestion to the contrary," but "it may have created the same presumption in the minds of ratifiers."

According to Lash, no evidence of any ratifier discussing Section 3 has been uncovered and "no one has yet found evidence that any ratifier even considered the possibility that Section 3 abridged the people's right to choose their president."

This "silence" on Section 3 is significant because the Supreme Court is being asked to use "textual implication" to restrict the democratic process with new provisions that "deny the people the right to elect whomever they wish."

Arguing that the wording of Section 3 "is ambiguous" when it comes to the office of president, Lash said the Supreme Court should "limit the clause to its historically verifiable meaning and scope" and "let the people make their own decision about Donald Trump."