UPDATE: 4 Mar 2024 - OPINION - 9-0 States cannot enforce against federal officers, 5-4 only Congress can
If Ben Garrison had written *Peanuts* he would have labels all over the place. In this image Charlie Brown would be labelled "TRUMP", the football would be "PRESIDENCY" ...
... and Lucy (in very small letters) would be "SECTION THREE OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION".
At stake is whether Trump, and other insurrectionist office-holders, can be removed from office or denied ballot access and, if so, by whom and how and on what exact grounds and evidence. It is a tricky question. While other cases may take away Trump's wealth, his business, and his freedom, these threaten his one remaining ambition and pride and source of fundraising. And for insurrectionist Senators and Representatives, and for MAGA office-holders all around the country it is squeaky bum time.
COLORADO CASE (federal appeals through 10th circuit)
Anderson et al v Griswold & Trump
Brought by Citizens for Responsibility and Ethics in Washington (CREW) in the 2nd Judicial District, Denver County, CO
docket
petition
30 Oct 2023 - hearing (5 days)
15 Nov 2023 - closing arguments
17 Nov 2023 - FINAL ORDER (Trump engaged in insurrection, but was not an "officer of the United States")
Colorado Supreme Court
20 Nov 2023 - Trump appeal
20 Nov 2023 - Plaintiffs appeal
6 Dec 2023 - hearing
19 Dec - OPINION, Trump is disqualified!
SCOTUS
1) DOCKET (as Colorado Republican State Central Committee v Anderson et al)
27 Dec 2023 - CRSCC petition for certiorari, response 2 Jan, voters brief 2 Jan, Griswold brief 2 Jan, CRSCC reply 4 Jan ...
27 Dec 2023 - CRSCC motion to expedite, response 28 Dec, ...
28 Dec 2023 - voters motion to expedite
3 Jan 2024 - Republican Senators amicus brief (he's not barred from running, only from holding office) (also in Trump v Anderson et al)
4 Jan 2024 - Brian J Martin amicus brief (guy is prepping a challenge in North Carolina)
4 Jan 2024 - Public Interest Legal Foundation amicus brief (supporting Trump)
2) DOCKET (as Trump v Anderson et al)
3 Jan 2024 - Trump petition for certiorari, response 4 Jandue 5 Feb, CERTIORARI GRANTED 5 Jan
4 Jan 2024 - letter in agreement from counsel for CRSCC
4 Jan 2024 - Republican Senators amicus brief (he's not barred from running, only from holding office) (also in CRSCC v Anderson at al)
5 Jan 2024 - Republican National Committee amicus brief (14th amendment only applies after an election, etc)
5 Jan 2024 - 27 states and the Arizona Legislature amicus brief (return the power to congress where it belongs)
(merits briefs key: '-' supporting Trump '*'= neutral '+' supporting respondents)
9 Jan 2024 - Prof Seth Tillman amicus brief (supports Griffin's case, Pres not an officer) (Pres not subject to emoluments clause!)
11 Jan 2024 - Landmark Legal Foundation amicus brief (states can't decide, no private cause of action, Trump didn't insurrect)
11 Jan 2024 - Vivek Ramaswamy amicus brief (antidemocratic, not an officer, Congress does not hide elephants in mouseholes)
15 Jan 2024 - David Weisberg amicus brief (presidency was deliberately omitted from Section Three)
16 Jan 2024 - Prof Kurt Lash amicus brief (Section Three ambiguous, reasonable to exclude presidency, guarded by electoral college)
16 Jan 2024 - William Jones amicus brief (it needs enabling legislation, there was none)
16 Jan 2024 * 'Binkley for President' amicus brief (DC District Court has exclusive jurisdiction under DC Code 16-3051 and 28 USC 2201-02!!)
16 Jan 2024 - Public Interest Legal Foundation amicus brief (Section Three no longer viable, doesn't apply to Trump, besides he was acquitted)
17 Jan 2024 - Colorado Republican State Central Committee brief (not an officer, not self-executing, holding office not seeking it, 1st amendment)
17 Jan 2024 - 102 Republican voters amicus brief (Colorado election law, not an officer, Amnesty Acts)
17 Jan 2024 - Pearl Madrial amicus brief (vote dilution, 12th amendment) (at least it is brief!)
17 Jan 2024 * Jack Coben amicus brief (disqualifies from holding office, not from running)
17 Jan 2024 - Devin & Charles Watkins amicus brief (not an officer, not an insurrection, not self-executing)
17 Jan 2024 - League for Sportsmen amicus brief (not an officer)
17 Jan 2024 * Childrens' Rights Lawyers amicus brief (a plea to decide the case for posterity, not just for now)
17 Jan 2024 - Claremont Institute amicus brief (not an officer, needs implementing legislation, no cause of action)
18 Jan 2024 - Peter Meier amicus brief (non-justiciable political question)
18 Jan 2024 * Akril & Vikram Amar amicus brief (fascinating historical replay from 1860!)
18 Jan 2024 - Judicial Watch amicus brief (due process, voters' rights and future dangers)
18 Jan 2024 - Condemned USA amicus brief (Trump tried to *stop* an insurrection, surejan.gif)
18 Jan 2024 - James Madison Center for Free Speech amicus brief (speech inciting insurrection is not 'engaging in', Ellipse speech is protected)
18 Jan 2024 * Foley, Ginsburg, Hansen amicus brief (states may resolve this, perilous situation that SCOTUS must resolve on merits)
18 Jan 2024 - Kansas GOP & 32 others amicus brief (Colorado was wrong, and it's not ripe anyway)
18 Jan 2024 - Ted Cruz & 178 others amicus brief (This is Congress' business, and it doesn't apply to Trump anyway, plus look how we could weaponise this)
18 Jan 2024 - Larry Kidd amicus brief (can only be enforced as directed by Congress)
18 Jan 2024 * Prof Derek Muller amicus brief (States have the power, but no obligation, other electoral law issues)
18 Jan 2024 * NY Bar Association amicus brief (needs uniform national merits decision, and fast)
18 Jan 2024 - Prof James Lindgren amicus brief (not an officer)
18 Jan 2024 * Brennan Center for Justice et al amicus brief (this is a matter for the States, Moore v Harper)
18 Jan 2024 - Sen Steve Daines & NRSC amicus brief (Colorado modified the qualifications, also 1st amendment)
18 Jan 2024 - RNC & NRCC amicus brief (not for the courts, 1st amendment, doesn't apply to Presidents)
18 Jan 2024 - Former US Attorneys amicus brief (Colorado messed up their own rules of evidence in using the Jan 6 Cttee Report)
18 Jan 2024 - Indiana & 24 others, plus AZ/NC legislatures amicus brief (Congress has to act first, and the courts can't decide what an insurrection is)
18 Jan 2024 * US Term Limits amicus brief (don't apply the Thornton case because it is wrong)
18 Jan 2024 * 11 Secretaries of State amicus brief (we don't want the power to do this!)
18 Jan 2024 * Michigan SoS amicus brief (SCOTUS must resolve fully and on the merits to avoid confusion)
18 Jan 2024 - America's Future et al amicus brief (does not apply to Trump, and there was no insurrection)
18 Jan 2024 - State of Kansas amicus brief (Needs strict construction, does not apply to Trump)
18 Jan 2024 - Christian Family Coalition amicus brief (for Congress alone)
18 Jan 2024 - Gavin Wax/NY Young Republicans et al correctedamicus brief (Trump didn't 'engage' in insurrection)
18 Jan 2024 * NAACP amicus brief (SCOTUS, do your duty and do not mess up again like you did before)
18 Jan 2024 - Former Attorneys General amicus brief (does not apply to President, requires legislation)
18 Jan 2024 - Donald J Trump brief (I was not an officer and I didn't do it, honest)
18 Jan 2024 - Tore Maras et al amicus brief (Colorado decision violates 9th and 10th amendments, and Trump didn't insurrect)
18 Jan 2024 - Wyoming SoS amicus brief (Trump not an officer and didn't do it either)
18 Jan 2024 * David Boyle amicus brief (the strange case of Chuckie Peanut. A rubbish brief but a fun read!)
22 Jan 2024 + Antaeus Edelsohn amicus brief (applies to President, self-executing, must apply to candidates)
26 Jan 2024 + Anderson respondents brief (Trump engaged in insurrection, applies to Presidents, courts may adjudicate)
26 Jan 2024 + Profs Orville Burton et al amicus brief (historical perspective, covers the President, no Congressional action needed)
26 Jan 2024 * Colorado SoS motion for extended oral argument, Anderson opposed 30 Jan, GRANTED 2 Feb
29 Jan 2024 + American Historians amicus brief (historical perspective inc. Jefferson Davis)
29 Jan 2024 + Brian Martin amicus brief (it means what it says, and disqualifies Trump)
29 Jan 2024 + Judge Luttig et al amicus brief (powerful and densely argued, well worth reading)
29 Jan 2024 - Prof Seth Tillman motion to be heard at oral argument, opposed 31 Jan, DENIED 2 Feb
30 Jan 2024 + Prof Kermit Roosevelt amicus brief (policy concerns don't justify setting aside the constitution, anti Griffin's case)
30 Jan 2024 + Former Republican Governors amicus brief (take oaths, and the Constitution, seriously)
30 Jan 2024 + Common Cause amicus brief (Trump is an existential threat, deal with it)
30 Jan 2024 + First amendment scholars amicus brief (it would not breach 1st amendment rights)
30 Jan 2024 + Profs Anderson & Farrell amicus brief (it would not be undemocratic, and Jan 6 is not like BLM protests)
31 Jan 2024 + Constitutional Accountability Center amicus brief (applies to the Presidency and to Presidents)
31 Jan 2024 + Michael T Worley amicus brief (president is an officer of the US, linguistic & historical view)
31 Jan 2024 + Prof Mark A Graber amicus brief (historical understanding of 'insurrection')
31 Jan 2024 + Mary Buchanan amicus brief (former CO SoS: states have broad discretion, Trump had due process)
31 Jan 2024 + Josh Autry amicus brief (it was an insurrection or a rebellion at least)
31 Jan 0224 + Former Republican members of Congress amicus brief (was an insurrection, this is not a job for Congress)
31 Jan 2024 + Jena Griswold brief (Co SoS: Colorado's rights and duties and law)
31 Jan 2024 + Retired State Supreme Court Justices amicus brief (state courts do not need permission from Congress)
31 Jan 2024 + David Cullenberg et al amicus brief (Trump is an insurrectionist, and forfeited his right to serve)
31 Jan 2024 + Prof Sherrilyn Ifill amicus brief (Section Three is fundamental to the protection of civil rights)
31 Jan 2024 + Experts in Democracy amicus brief (fascinating and chilling international comparisons)
31 Jan 2024 + San Francisco Taxpayers amicus brief (Trump engaged in rebellion)
31 Jan 2024 + Capitol Police Officers amicus brief (no first amendment defense)
31 Jan 2024 + Prof David Driesen et al amicus brief (international context, judicial duty to enforce Section Three to protect democracy)
31 Jan 2024 + Prof Ilya Somin amicus brief (does not require criminal conviction, Trump got his due process)
31 Jan 2024 * Jordan Michelson amicus brief (Supreme Court does not have jurisdiction!!) (bonkers I think) (also improper late filing)
31 Jan 2024 - US Justice Foundation amicus brief (Colorado Supreme Court did not have jurisdiction!) (improper late filing)
31 Jan 2024 + Prof Edward Larsen amicus brief (The twentieth amendment)
31 Jan 2024 + David Tatge amicus brief (Chief Justice Chase contradicted himself, Colorado did everything right)
31 Jan 2024 + Jeremy Bates amicus brief (analogy to fiduciary-disqualification)
2 Feb 2024 * David Boyle motion to participate in oral argument (comedy interlude!)
5 Feb 2024 - CRSCC reply
5 Feb 2024 - Trump reply
5 Feb 2024 - Tore Maras et al motion to join in oral argument
8 Feb 2024 - oral argument - transcript
4 Mar 2024 - OPINION - 9-0 States cannot enforce against federal officers, 5-4 only Congress can
MINNESOTA CASE (federal appeals through 8th circuit)
Growe et al v Simon
Brought by Free Speech for People (FSP) in Minnesota Supreme Court
documents (at FSP's site because I can't find a court docket))
petition
2 Nov 2023 - oral argument
8 Nov 2023 - ORDER case dismissed (without prejudice as to the general election)
MICHIGAN CASE
FSP also filed in the Court of Claims in Michigan, (federal through 6th circuit), but it doesn't seem to be doing anything yet.
14 Nov 2023 - ORDER, SoS has no discretion to keep Trump off the primary ballot
MAINE (Trump v Bellows)
28 Dec 2023 - Secretary of State decision (Trump barred from primary ballot)
2 Jan 2024 - Trump appeal to Maine Superior Court
OTHER CASES
There are 30 cases altogether across many states. Most will probably fail on standing.
Lawfare is tracking them here.
ARTICLES
The Sweep and Force of Section Three, Baude & Paulsen (PDF download from here)
Sweeping and Forcing the President into Section 3, Blackman & Tillman
ALSO ON RESETERA
MSNBC: Judge rules that Trump "engaged in insurrection," but is still eligible for ballot (in Colorado).
The Colorado Supreme Court holds that Trump is disqualified from holding the presidency
Trump barred from ballot in Maine
The Supreme Court will decide if Trump can be kept off 2024 presidential ballots
Supreme Court rules that Trump will stay on Colorado state ballot despite Jan. 6 attack
BACKGROUND
Section 3 was adopted in 1868 as a means to prevent Congress being overrun by ex-Confederates. It was rarely enforced, at least in the South, and a couple of amnesties in 1872 and 1898 seemed to have killed it off for its original purpose. Besides, they are all long dead now.
There's only the one precedent against applying Section Three, that's Griffin's Case from 1869, a decision by the then Chief Justice Salmon P. Chase sitting as a Circuit Judge in Virginia, holding that the section is ineffective unless Congress passes enabling legislation. So far as I can tell, this is binding on federal courts only in the 4th Circuit (or possibly only in Virginia, as it predates the modern Appellate Courts and circuits). After that nothing much happened for 150 years.
Then January 6th happened.
A section 3 challenge was brought against U.S.Rep Madison Cawthorn, but eventually mooted as he had already left office. Another came against U.S.Rep Marjorie Taylor Greene, but her challenge to the constitution was mooted in federal court as she was already on the ballot by then. In New Mexico, commissioner Couy Griffin has been removed from office under this section.
Then a couple of Federalist Society lawyers, Baude & Paulsen wrote an academic paper "The Sweep and Force of Section Three" (link above) which analyses the history and law in detail, demolishes Chase's reasoning in Griffin's Case and concludes that Section Three is self-executing to disqualify people from office, that it may be enforced by anyone who has any duty of putting people on ballots at any stage of the process, and that Trump in particular is, as a result, constitutionally prohibited from holding any office. This generated rather a lot of discussion, with Judge Luttig in particular coming out strongly in favour.
Since then many cases have been filed, most of them by pro se litigants who have failed to establish standing. The two cases above are active in state courts, show signs of getting to hearings/trial and, from there, up through the federal appeals courts to SCOTUS. The aim, apparently, being to have the question settled before the Republican primaries kick in.
People who enjoyed this may also enjoy ...
E Jean Carroll v Donald J Trump (civil case for battery and defamation)
Trump on Trial - Episode 1 |OT| The One with the Porn Star
Trump on Trial - Episode 2 |OT| The One with the Perfect Phone Call in Georgia (Fulton County)
Trump on Trial - Episode 3 |OT| The One with the Bigliest Assets Ever (New York Civil Fraud)
Trump on Trial - Episode 4 |OT| The One with the Missing Documents
Trump on Trial - Episode 5 |OT| The One with the Insurrection
Trump on Trial - Episode 7 |OT| The Ones with the Ku Klux Klan Act (Jan 6 civil cases)
If Ben Garrison had written *Peanuts* he would have labels all over the place. In this image Charlie Brown would be labelled "TRUMP", the football would be "PRESIDENCY" ...
... and Lucy (in very small letters) would be "SECTION THREE OF THE FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION".
At stake is whether Trump, and other insurrectionist office-holders, can be removed from office or denied ballot access and, if so, by whom and how and on what exact grounds and evidence. It is a tricky question. While other cases may take away Trump's wealth, his business, and his freedom, these threaten his one remaining ambition and pride and source of fundraising. And for insurrectionist Senators and Representatives, and for MAGA office-holders all around the country it is squeaky bum time.
COLORADO CASE (federal appeals through 10th circuit)
Anderson et al v Griswold & Trump
Brought by Citizens for Responsibility and Ethics in Washington (CREW) in the 2nd Judicial District, Denver County, CO
docket
petition
30 Oct 2023 - hearing (5 days)
15 Nov 2023 - closing arguments
17 Nov 2023 - FINAL ORDER (Trump engaged in insurrection, but was not an "officer of the United States")
Colorado Supreme Court
20 Nov 2023 - Trump appeal
20 Nov 2023 - Plaintiffs appeal
6 Dec 2023 - hearing
19 Dec - OPINION, Trump is disqualified!
SCOTUS
1) DOCKET (as Colorado Republican State Central Committee v Anderson et al)
27 Dec 2023 - CRSCC petition for certiorari, response 2 Jan, voters brief 2 Jan, Griswold brief 2 Jan, CRSCC reply 4 Jan ...
27 Dec 2023 - CRSCC motion to expedite, response 28 Dec, ...
28 Dec 2023 - voters motion to expedite
3 Jan 2024 - Republican Senators amicus brief (he's not barred from running, only from holding office) (also in Trump v Anderson et al)
4 Jan 2024 - Brian J Martin amicus brief (guy is prepping a challenge in North Carolina)
4 Jan 2024 - Public Interest Legal Foundation amicus brief (supporting Trump)
2) DOCKET (as Trump v Anderson et al)
3 Jan 2024 - Trump petition for certiorari, response 4 Jan
4 Jan 2024 - letter in agreement from counsel for CRSCC
4 Jan 2024 - Republican Senators amicus brief (he's not barred from running, only from holding office) (also in CRSCC v Anderson at al)
5 Jan 2024 - Republican National Committee amicus brief (14th amendment only applies after an election, etc)
5 Jan 2024 - 27 states and the Arizona Legislature amicus brief (return the power to congress where it belongs)
(merits briefs key: '-' supporting Trump '*'= neutral '+' supporting respondents)
9 Jan 2024 - Prof Seth Tillman amicus brief (supports Griffin's case, Pres not an officer) (Pres not subject to emoluments clause!)
11 Jan 2024 - Landmark Legal Foundation amicus brief (states can't decide, no private cause of action, Trump didn't insurrect)
11 Jan 2024 - Vivek Ramaswamy amicus brief (antidemocratic, not an officer, Congress does not hide elephants in mouseholes)
15 Jan 2024 - David Weisberg amicus brief (presidency was deliberately omitted from Section Three)
16 Jan 2024 - Prof Kurt Lash amicus brief (Section Three ambiguous, reasonable to exclude presidency, guarded by electoral college)
16 Jan 2024 - William Jones amicus brief (it needs enabling legislation, there was none)
16 Jan 2024 * 'Binkley for President' amicus brief (DC District Court has exclusive jurisdiction under DC Code 16-3051 and 28 USC 2201-02!!)
16 Jan 2024 - Public Interest Legal Foundation amicus brief (Section Three no longer viable, doesn't apply to Trump, besides he was acquitted)
17 Jan 2024 - Colorado Republican State Central Committee brief (not an officer, not self-executing, holding office not seeking it, 1st amendment)
17 Jan 2024 - 102 Republican voters amicus brief (Colorado election law, not an officer, Amnesty Acts)
17 Jan 2024 - Pearl Madrial amicus brief (vote dilution, 12th amendment) (at least it is brief!)
17 Jan 2024 * Jack Coben amicus brief (disqualifies from holding office, not from running)
17 Jan 2024 - Devin & Charles Watkins amicus brief (not an officer, not an insurrection, not self-executing)
17 Jan 2024 - League for Sportsmen amicus brief (not an officer)
17 Jan 2024 * Childrens' Rights Lawyers amicus brief (a plea to decide the case for posterity, not just for now)
17 Jan 2024 - Claremont Institute amicus brief (not an officer, needs implementing legislation, no cause of action)
18 Jan 2024 - Peter Meier amicus brief (non-justiciable political question)
18 Jan 2024 * Akril & Vikram Amar amicus brief (fascinating historical replay from 1860!)
18 Jan 2024 - Judicial Watch amicus brief (due process, voters' rights and future dangers)
18 Jan 2024 - Condemned USA amicus brief (Trump tried to *stop* an insurrection, surejan.gif)
18 Jan 2024 - James Madison Center for Free Speech amicus brief (speech inciting insurrection is not 'engaging in', Ellipse speech is protected)
18 Jan 2024 * Foley, Ginsburg, Hansen amicus brief (states may resolve this, perilous situation that SCOTUS must resolve on merits)
18 Jan 2024 - Kansas GOP & 32 others amicus brief (Colorado was wrong, and it's not ripe anyway)
18 Jan 2024 - Ted Cruz & 178 others amicus brief (This is Congress' business, and it doesn't apply to Trump anyway, plus look how we could weaponise this)
18 Jan 2024 - Larry Kidd amicus brief (can only be enforced as directed by Congress)
18 Jan 2024 * Prof Derek Muller amicus brief (States have the power, but no obligation, other electoral law issues)
18 Jan 2024 * NY Bar Association amicus brief (needs uniform national merits decision, and fast)
18 Jan 2024 - Prof James Lindgren amicus brief (not an officer)
18 Jan 2024 * Brennan Center for Justice et al amicus brief (this is a matter for the States, Moore v Harper)
18 Jan 2024 - Sen Steve Daines & NRSC amicus brief (Colorado modified the qualifications, also 1st amendment)
18 Jan 2024 - RNC & NRCC amicus brief (not for the courts, 1st amendment, doesn't apply to Presidents)
18 Jan 2024 - Former US Attorneys amicus brief (Colorado messed up their own rules of evidence in using the Jan 6 Cttee Report)
18 Jan 2024 - Indiana & 24 others, plus AZ/NC legislatures amicus brief (Congress has to act first, and the courts can't decide what an insurrection is)
18 Jan 2024 * US Term Limits amicus brief (don't apply the Thornton case because it is wrong)
18 Jan 2024 * 11 Secretaries of State amicus brief (we don't want the power to do this!)
18 Jan 2024 * Michigan SoS amicus brief (SCOTUS must resolve fully and on the merits to avoid confusion)
18 Jan 2024 - America's Future et al amicus brief (does not apply to Trump, and there was no insurrection)
18 Jan 2024 - State of Kansas amicus brief (Needs strict construction, does not apply to Trump)
18 Jan 2024 - Christian Family Coalition amicus brief (for Congress alone)
18 Jan 2024 - Gavin Wax/NY Young Republicans et al corrected
18 Jan 2024 * NAACP amicus brief (SCOTUS, do your duty and do not mess up again like you did before)
18 Jan 2024 - Former Attorneys General amicus brief (does not apply to President, requires legislation)
18 Jan 2024 - Donald J Trump brief (I was not an officer and I didn't do it, honest)
18 Jan 2024 - Tore Maras et al amicus brief (Colorado decision violates 9th and 10th amendments, and Trump didn't insurrect)
18 Jan 2024 - Wyoming SoS amicus brief (Trump not an officer and didn't do it either)
18 Jan 2024 * David Boyle amicus brief (the strange case of Chuckie Peanut. A rubbish brief but a fun read!)
22 Jan 2024 + Antaeus Edelsohn amicus brief (applies to President, self-executing, must apply to candidates)
26 Jan 2024 + Anderson respondents brief (Trump engaged in insurrection, applies to Presidents, courts may adjudicate)
26 Jan 2024 + Profs Orville Burton et al amicus brief (historical perspective, covers the President, no Congressional action needed)
26 Jan 2024 * Colorado SoS motion for extended oral argument, Anderson opposed 30 Jan, GRANTED 2 Feb
29 Jan 2024 + American Historians amicus brief (historical perspective inc. Jefferson Davis)
29 Jan 2024 + Brian Martin amicus brief (it means what it says, and disqualifies Trump)
29 Jan 2024 + Judge Luttig et al amicus brief (powerful and densely argued, well worth reading)
29 Jan 2024 - Prof Seth Tillman motion to be heard at oral argument, opposed 31 Jan, DENIED 2 Feb
30 Jan 2024 + Prof Kermit Roosevelt amicus brief (policy concerns don't justify setting aside the constitution, anti Griffin's case)
30 Jan 2024 + Former Republican Governors amicus brief (take oaths, and the Constitution, seriously)
30 Jan 2024 + Common Cause amicus brief (Trump is an existential threat, deal with it)
30 Jan 2024 + First amendment scholars amicus brief (it would not breach 1st amendment rights)
30 Jan 2024 + Profs Anderson & Farrell amicus brief (it would not be undemocratic, and Jan 6 is not like BLM protests)
31 Jan 2024 + Constitutional Accountability Center amicus brief (applies to the Presidency and to Presidents)
31 Jan 2024 + Michael T Worley amicus brief (president is an officer of the US, linguistic & historical view)
31 Jan 2024 + Prof Mark A Graber amicus brief (historical understanding of 'insurrection')
31 Jan 2024 + Mary Buchanan amicus brief (former CO SoS: states have broad discretion, Trump had due process)
31 Jan 2024 + Josh Autry amicus brief (it was an insurrection or a rebellion at least)
31 Jan 0224 + Former Republican members of Congress amicus brief (was an insurrection, this is not a job for Congress)
31 Jan 2024 + Jena Griswold brief (Co SoS: Colorado's rights and duties and law)
31 Jan 2024 + Retired State Supreme Court Justices amicus brief (state courts do not need permission from Congress)
31 Jan 2024 + David Cullenberg et al amicus brief (Trump is an insurrectionist, and forfeited his right to serve)
31 Jan 2024 + Prof Sherrilyn Ifill amicus brief (Section Three is fundamental to the protection of civil rights)
31 Jan 2024 + Experts in Democracy amicus brief (fascinating and chilling international comparisons)
31 Jan 2024 + San Francisco Taxpayers amicus brief (Trump engaged in rebellion)
31 Jan 2024 + Capitol Police Officers amicus brief (no first amendment defense)
31 Jan 2024 + Prof David Driesen et al amicus brief (international context, judicial duty to enforce Section Three to protect democracy)
31 Jan 2024 + Prof Ilya Somin amicus brief (does not require criminal conviction, Trump got his due process)
31 Jan 2024 * Jordan Michelson amicus brief (Supreme Court does not have jurisdiction!!) (bonkers I think) (also improper late filing)
31 Jan 2024 - US Justice Foundation amicus brief (Colorado Supreme Court did not have jurisdiction!) (improper late filing)
31 Jan 2024 + Prof Edward Larsen amicus brief (The twentieth amendment)
31 Jan 2024 + David Tatge amicus brief (Chief Justice Chase contradicted himself, Colorado did everything right)
31 Jan 2024 + Jeremy Bates amicus brief (analogy to fiduciary-disqualification)
2 Feb 2024 * David Boyle motion to participate in oral argument (comedy interlude!)
5 Feb 2024 - CRSCC reply
5 Feb 2024 - Trump reply
5 Feb 2024 - Tore Maras et al motion to join in oral argument
8 Feb 2024 - oral argument - transcript
4 Mar 2024 - OPINION - 9-0 States cannot enforce against federal officers, 5-4 only Congress can
MINNESOTA CASE (federal appeals through 8th circuit)
Growe et al v Simon
Brought by Free Speech for People (FSP) in Minnesota Supreme Court
documents (at FSP's site because I can't find a court docket))
petition
2 Nov 2023 - oral argument
8 Nov 2023 - ORDER case dismissed (without prejudice as to the general election)
MICHIGAN CASE
FSP also filed in the Court of Claims in Michigan, (federal through 6th circuit), but it doesn't seem to be doing anything yet.
14 Nov 2023 - ORDER, SoS has no discretion to keep Trump off the primary ballot
MAINE (Trump v Bellows)
28 Dec 2023 - Secretary of State decision (Trump barred from primary ballot)
2 Jan 2024 - Trump appeal to Maine Superior Court
OTHER CASES
There are 30 cases altogether across many states. Most will probably fail on standing.
Lawfare is tracking them here.
ARTICLES
The Sweep and Force of Section Three, Baude & Paulsen (PDF download from here)
Sweeping and Forcing the President into Section 3, Blackman & Tillman
ALSO ON RESETERA
MSNBC: Judge rules that Trump "engaged in insurrection," but is still eligible for ballot (in Colorado).
The Colorado Supreme Court holds that Trump is disqualified from holding the presidency
Trump barred from ballot in Maine
The Supreme Court will decide if Trump can be kept off 2024 presidential ballots
Supreme Court rules that Trump will stay on Colorado state ballot despite Jan. 6 attack
BACKGROUND
U.S.Constitution 14th Amendment Section 3 said:
Section 3 was adopted in 1868 as a means to prevent Congress being overrun by ex-Confederates. It was rarely enforced, at least in the South, and a couple of amnesties in 1872 and 1898 seemed to have killed it off for its original purpose. Besides, they are all long dead now.
There's only the one precedent against applying Section Three, that's Griffin's Case from 1869, a decision by the then Chief Justice Salmon P. Chase sitting as a Circuit Judge in Virginia, holding that the section is ineffective unless Congress passes enabling legislation. So far as I can tell, this is binding on federal courts only in the 4th Circuit (or possibly only in Virginia, as it predates the modern Appellate Courts and circuits). After that nothing much happened for 150 years.
Then January 6th happened.
A section 3 challenge was brought against U.S.Rep Madison Cawthorn, but eventually mooted as he had already left office. Another came against U.S.Rep Marjorie Taylor Greene, but her challenge to the constitution was mooted in federal court as she was already on the ballot by then. In New Mexico, commissioner Couy Griffin has been removed from office under this section.
Then a couple of Federalist Society lawyers, Baude & Paulsen wrote an academic paper "The Sweep and Force of Section Three" (link above) which analyses the history and law in detail, demolishes Chase's reasoning in Griffin's Case and concludes that Section Three is self-executing to disqualify people from office, that it may be enforced by anyone who has any duty of putting people on ballots at any stage of the process, and that Trump in particular is, as a result, constitutionally prohibited from holding any office. This generated rather a lot of discussion, with Judge Luttig in particular coming out strongly in favour.
Since then many cases have been filed, most of them by pro se litigants who have failed to establish standing. The two cases above are active in state courts, show signs of getting to hearings/trial and, from there, up through the federal appeals courts to SCOTUS. The aim, apparently, being to have the question settled before the Republican primaries kick in.
People who enjoyed this may also enjoy ...
E Jean Carroll v Donald J Trump (civil case for battery and defamation)
Trump on Trial - Episode 1 |OT| The One with the Porn Star
Trump on Trial - Episode 2 |OT| The One with the Perfect Phone Call in Georgia (Fulton County)
Trump on Trial - Episode 3 |OT| The One with the Bigliest Assets Ever (New York Civil Fraud)
Trump on Trial - Episode 4 |OT| The One with the Missing Documents
Trump on Trial - Episode 5 |OT| The One with the Insurrection
Trump on Trial - Episode 7 |OT| The Ones with the Ku Klux Klan Act (Jan 6 civil cases)
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