In the 2000 presidential election, some voters in Palm Beach County — intending to cast a vote for candidate Al Gore — instead accidentally voted for Pat Buchanan. Their errors, enabled by the defective design of a butterfly ballot, may have changed the outcome of the presidential election. Now, over 20 years later, another presidential ballot dispute seeks to keep one person’s name off entirely. As a recent court order attests, it’s the imperfect text of a little-known constitutional provision that has clouded the latest presidential ballot battle.
A Colorado state judge just issued a lengthy, unorthodox ruling that finds Donald Trump is an insurrectionist, but notwithstanding that title, he should remain on the presidential primary ballot. The ruling evaluates the language in the 14th Amendment, Section 3, that prohibits certain persons who “engaged in insurrection or rebellion … or given aid or comfort to the enemies thereof” from holding numerous enumerated federal and state offices. The ruling also, in great detail, recites the evidence introduced by the parties and makes extensive factual findings. Specifically, the court concluded that Trump engaged in or supported an insurrection against the country.
The Colorado judge’s order is unusual because it ignores the basic principle of judicial economy by going beyond what was necessary to decide the case. The judge held that the language of the 14th Amendment’s Section 3 prohibition doesn’t apply to the presidency. That conclusion is a legal one and ended the dispute. The court wasn’t required to make any factual findings because — correctly or not — it resolved the case on preliminary legal grounds. That is, the judge didn’t have to reach the issue of Trump’s role unless the 14th Amendment Section 3 reaches the office of president.
Branding Trump an “insurrectionist” when it’s not a necessary part of resolving the case might be tempting (I agree with the actual conclusion), but it also is judicial overreach, one that carries serious repercussions. Most importantly, the country now is forced to digest a court’s findings about Trump’s actions regarding Jan. 6 divorced of what that means in terms of consequences.
The judge explained her rationale for making the factual findings in a footnote. She wanted to provide the appellate courts a full record to decide the matter. In the event a reviewing court reaches a different legal conclusion about whether Section 3 applies to the presidency, the case wouldn’t need a remand and reconsideration. However, the case record on appeal will include all the witness testimony, exhibits and other evidence. That remains true without the judge’s factual conclusions. Further, if an appellate court makes a different legal ruling, it realistically will not be overly deferential to the state trial judge’s final conclusions about whether Trump was an insurrectionist. It will engage in its own evaluation, regardless of any legal standard.
The trial court’s legal analysis in the order was much more nuanced. The judge held that because support exists for opposing views of the section’s scope, caution should rule. The judge reasoned that eliminating a person from running for president is of such historic significance that it requires a clarity that she believes does not exist in the amendment’s language.
For example, the amendment identifies several specific offices falling under its Section 3 umbrella — senator, representative in Congress, “elector of President and Vice-President,” any state or federal civil or military office including any “officer of the United States,” “a member of any State legislature,” and “an executive or judicial officer of any State” — but it doesn’t explicitly name the offices of president and vice president. The order commits significant attention to exploring why. Ultimately, the judge refrained from excluding Trump from the ballot because the legal issue is debatable.
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In this hyperdivided country, the judicial removal of a candidate from the presidential ballot would result in unprecedented reaction, possibly in civil unrest. If that decision were based on a broad interpretation of an awkwardly drafted constitutional provision, it would represent the boldest possible exercise of judicial power. Such power must be used as sparingly as possible.
That judicial reluctance should also apply to formally classifying Trump, or anyone else, an insurrectionist. It shouldn’t be done without effect, hovering in the air for consideration but not action.
Michael McAuliffe is a former federal prosecutor. He also served as the elected state attorney for Palm Beach County. Currently, he is a practicing lawyer, an adjunct professor at the College of William & Mary’s Law School and a senior lecturing fellow at Duke University’s School of Law. He is the author of the novel “No Truth Left To Tell.”