The American Justice project is a curated collection of decentralized legal filings from newsworthy, historic, and otherwise interesting cases.
One case I’ve had my eye on is Anderson et al. v. Griswold, currently on appeal to the Colorado Supreme Court with a high-profile litigant, a novel question of constitutional law, and the potential to blow a hole in the 2024 Presidential Election.
Ratified in the wake of the Civil War, the Fourteenth Amendment to the U.S. Constitution has had an enduring effect on citizenship rights, due process, and equal protection under the law.
But its Disqualification Clause, Section 3, intended to keep power out of the hands of insurrectionist officeholders, hasn’t been relevant in over a century.
Then came the January 6th 2021 attack, and this long-dormant clause opened its eyes, cracked its neck, and asked for legal clarification on whether the events of January 6th really did constitute an insurrection.
Does an insurrection have to be successful? The January 6th rioters failed in their aspiration to overturn the 2020 election, but the Confederacy, exemplar of American insurrection, also failed in its twin goals of leaving the Union and preserving the institution of slavery. So a failed insurrection is still an insurrection.
An insurrection also doesn’t have to be bloody. Despite the tragic scope of the Civil War, Jefferson Davis never came close to placing Confederate foot soldiers into the halls of Congress—but the “Stop the Steal” movement certainly did, causing damage, disrupting government business, and sending senators, representatives, and the sitting Vice President to flee in fear for their lives.
An insurrection doesn’t have to be ambitious. The Confederacy sought to control about a third of the U.S. population in eleven states, while the January 6th rioters sought, by illegal means, to secure their leader’s control over the entire nation.
An insurrection doesn’t have to exert itself over a minimal period of time. The Confederate States of America existed from February 8, 1861, to May 9, 1865. The January 6th attack delayed the Electoral College certification by seven hours. But over two years later, many insurrectionists and insurrection sympathizers still refuse to concede the results of a free and fair election and are agitating to replace American democracy with a system of rule by whoever shouts their grievances the loudest.
So what makes an insurrection an insurrection?
Most importantly for the Anderson court, an insurrection under the Fourteenth Amendment doesn’t merely oppose the government, its institutions, or its officers, but seeks to oppose and undermine the Constitution, its authority, and the oaths of its sworn supporters.
The Fourteenth Amendment doesn’t disqualify all insurrectionists from office, only the subset that are also oath-breakers. Jacob Chansley, the so-called QAnon Shaman who stormed Congress on January 6th, 2021, in a horned helmet and face paint, had not previously sworn an oath to support the Constitution, so he is free to run for office. Chansley is currently seeking to represent Arizona’s 8th Congressional District, and the Fourteenth Amendment can’t stop him. The QAnon Shaman absolutely does not fall under the Disqualification Clause, while Donald Trump still might.
According to the court’s final order, “an ‘insurrection’ at the time of ratification of the Fourteenth Amendment was understood to refer to any public use of force or threat of force by a group of people to hinder or prevent the execution of law.”
Under this definition, with the evidence presented for its consideration, the Anderson court was the first among the current state-level actions to find January 6th to have been an insurrection and Donald Trump to be an insurrectionist.
However, the court then declined to disqualify Trump from Colorado’s primary ballot on two technicalities.
First, because the presidency is not one of the offices specifically listed in the Disqualification Clause.
And second, because the amendment references officials who swear to “support” the Constitution, while the presidential oath of office is to “preserve, protect, and defend” it.
On expedited appeal, the Anderson Petitioners are asking the Colorado Supreme Court to overturn the two interpretations keeping Trump on the ballot.
Trump’s lawyers, meanwhile, have asked the higher court to remove the stigma of the lower court’s factual determinations regarding his participation in an insurrection, to invalidate the admission of the January 6th Committee Report into evidence, and to establish that only Congress can determine when the Disqualification Clause applies to a candidate for office.
Because of the novel constitutional issues involved, it seems inevitable that the U.S. Supreme Court will be called on to provide the final word. Anderson looks to be the case that currently has the straightest, swiftest path to the high court, where Trump will have the advantage.
For the Petitioners to successfully disqualify Trump from the ballot, they will have to win on every procedural, factual, and legal issue. Meanwhile, Trump has thrown multiple strands of argument against the wall and will prevail if any one of them manages to stick.
One argument has already stuck in a Minnesota case, Growe et al. v. Simon. The court there ruled that the applicability of the Fourteenth Amendment is a political issue, rather than a judicial issue, to be decided by Congress rather than through litigation. This puts the Growe court in direct conflict with the Anderson court, creating another space for the U.S. Supreme Court to step into.
Regardless, Anderson and other current cases will clarify constitutional law, rewrite legal textbooks, impact the upcoming election, and intersect with Trump’s other ongoing legal woes.
If Trump is ultimately disqualified from the ballot, he will no longer be able to claim the deference given to political candidates under the First Amendment. And even if the current Anderson ruling stands, and Trump is allowed to run and to serve, his status as a legally declared insurrection participant will shred his defenses in the two (so far) criminal cases that involve election interference.
The imminent primary election season has spurred the current round of state-level challenges, but the final word may not come until the general election.
A Michigan case, LaBrant v. Benson, found the Disqualification Clause to be entirely irrelevant to the primary election, since the purpose of that vote is not to determine the next president, but rather to determine party delegates to the Republican National Convention where a presidential nominee will be chosen.
By the logic of the LaBrant court, a political party could ask the Michigan Secretary of State to put any number of unqualified and disqualified candidates on the ballot: insurrectionists, children, corporations, foreign nationals, foreign heads of state, political action committees, the estates of dead celebrities, etc.
If these candidates got sufficient votes in the primary, they’d be able to send Michigan’s delegates to the nominating convention with instructions on which actually qualified candidate to vote for. Under this interpretation, Trump could be disqualified from serving as president under the Fourteenth Amendment but still able to run in the primary election, assemble a majority of delegates, and hand-pick a loyalist as his party’s nominee.
If Trump is nominated by his party and the Fourteenth Amendment issues have not been entirely resolved, we may see another round of challenges to having his name on the General Election ballot or to certifying the results in any state where he might win electors.
The Final Order of the Anderson trial court can be reviewed in the American Justice collection and is available as a blockchain-bound decentralized memento. The Colorado Supreme Court has scheduled a hearing on December 6th. In advance of the hearing, Trump and the Petitioners are scheduled to file a sequence of dueling briefs that also will be memorialized in the American Justice collection.
And in case “blockchain-bound decentralized memento” becomes the term that replaces “non-fungible token,” remember that you read it here first.