The Korea Herald


[Erwin Chemerinsky] Decide on Colorado's ruling quickly

By Korea Herald

Published : Dec. 26, 2023 - 05:30

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The Colorado Supreme Court did the country an enormous service by ruling that Donald Trump is ineligible to be president and squarely presenting the constitutional issue before the US Supreme Court. The high court should take the case and decide quickly whether Donald Trump is disqualified from the ballot because of Section 3 of the 14th Amendment. It would be a political nightmare to resolve this question after Trump wins the Republican nomination or even worse, after he’s elected president.

Section 3 of the 14th Amendment explicitly precludes anyone who has previously taken an oath of office from holding public office if they have “engaged in insurrection or rebellion” against the United States. The provision was adopted to keep Confederates in the Civil War from holding federal office.

The justices will need to decide whether that provision applies to Trump as a former president, what constitutes an insurrection, and whether Trump participated in one.

Some, including the chief justice of the Colorado Supreme Court in a dissenting opinion, say that it should be left to the political process to decide who becomes the next president of the United States. But that stance would effectively toss out all other constitutional provisions that limit who can be president. Article II of the Constitution says that the president must be 35 years old, a natural-born citizen and at least 14 years a resident of the United States. Failure to meet those qualifications would eliminate a potential candidate. Section 3 of the 14th Amendment is no different.

Some have questioned whether throwing Trump off a ballot violates the “political question doctrine,” which maintains that the court should stay out of some political controversies. But that doctrine is often misunderstood. In no way does it prohibit the court from deciding cases involving elections, which, of course, can determine electoral outcomes.

For example, the Supreme Court ruled in 1962 that federal courts may hear challenges to state redistricting plans and has rejected the argument that this is a political question inappropriate for judicial review.

In 2010, the justices ruled in Citizens United vs. Federal Election Commission, that corporations have the right to spend unlimited amounts in political campaigns even though that unquestionably decides many elections. In 2013, in Shelby County vs. Holder, the court declared unconstitutional a crucial provision of the Voting Rights Act of 1965, which certainly changed the outcome of many elections. Most dramatically, in Bush vs. Gore, in 2000, the court effectively decided the outcome of the presidential election.

The “political question doctrine” only comes into play in a far more limited situation: when the Constitution assigns the matter to the other branches of government to resolve.

For example, the court has often said that challenges to the president’s conduct of foreign policy are generally political questions. Thus, it has refused to hear lawsuits challenging the constitutionality of the Vietnam War. Sometimes the court has said that a matter is a political question because there is no way for the judiciary to formulate principles for deciding what is unconstitutional. In Rucho vs. Common Cause, in 2019, the court said that it could not determine whether partisan gerrymandering -- where a political party draws districts to maximize safe seats for that party -- as opposed to, say, racial gerrymandering, is unconstitutional, because there is no way for a court to resolve what is too much use of politics.

But resolving the meaning of Section 3 of the 14th Amendment doesn’t involve coming up with new principles. It requires the court to apply standard methods of constitutional interpretation even though this is an unprecedented case.

What the Supreme Court will do is certainly not a foregone conclusion. Several of the justices describe themselves as originalists who believe that the key in interpretation is to follow the original meaning of a constitutional provision. Conservative law professors William Baude and Michael Paulsen have looked at Section 3 from an originalist perspective and concluded that “if the public record is accurate, the case is not even close”: Trump engaged in insurrection and is ineligible for the presidency.

I believe that the Colorado court got it right in interpreting Section 3. But what is most important is that its decision provides a vehicle for the US Supreme Court to decide the issue quickly. It’s also important to resolve this issue for the entire country rather than have it litigated in many different states or be decided by state election officials. The interests of the nation require that it take the case and resolve whether Trump is ineligible to be president.

Erwin Chemerinsky

Erwin Chemerinsky is dean of UC Berkeley School of Law. He was one of several constitutional law professors who filed a friend of the court brief with the Colorado Supreme Court to disqualify Donald Trump from the Colorado ballot. He wrote this piece for the Los Angeles Times. -- Ed.