Eliana Willis

The US supreme court will hear oral argument on Thursday in one of the most high-stakes cases in American politics this century, thrusting a beleaguered court to the center of the 2024 election.The court is considering whether Donald Trump is eligible to run for president. The novel legal question at the heart of the case, Donald J Trump v Norma Anderson et al, is whether the 14th amendment to the constitution prohibits Trump from holding office because of his conduct on 6 January 2021. Section 3 of the amendment says that any member of Congress or officer of the United States who takes an oath to protect the constitution and then subsequently engages in insurrection cannot hold office. That ban, the amendment says, can only be overridden by a two-thirds vote of each house of Congress.There is no precedent for the case. The 14th amendment, enacted after the civil war, has never been used to challenge the eligibility of a presidential candidate, but the idea began picking up steam after two conservative legal scholars published a 126-page law review article last summer arguing the amendment clearly disqualified Trump.A group of Colorado voters sued under the law last year, relying on the theory to try to disqualify Trump from the ballot. After a five-day trial, a Colorado district court judge said Trump had committed insurrection, but was not disqualified because he was not an officer of the United States. The Colorado supreme court reversed that ruling in December, removing Trump from the ballot in a 4-3 decision. While lawsuits have been filed in dozens of other states seeking to remove Trump from the ballot, only Colorado and Maine have done so thus far.The justices accepted a request from Trump to hear the case and expedited its review because of Colorado’s fast approaching 5 March primary. The compressed schedule and likely quick turnaround of the case means that oral argument – currently set for 80 minutes on Thursday – could offer an unusual level of insight into how the justices are weighing the arguments.“I feel more at sea than I usually do,” said Richard Hasen, an election law professor at the University of California Los Angeles, who co-authored an amicus brief urging the court to rule definitively on the case now. “There are a million ways the court can go. The court has given no signal, at all, as to which of those directions it wants to go in. And so, more than usual, I’m going to be very closely listening to the oral arguments to see which arguments are resonating with which justices.”The case also arrives at a perilous moment for the court itself. Public confidence in the court has been declining, exacerbated by a series of ethics scandals and controversial decisions that came down along ideological lines. The court is essentially now seen as a political body and as a result, the betting money seems to be that they will find a way to keep him on the ballot. Trump appointed three of the six justices in the supermajority on the body.“I don’t think it wants to be involved in these disputes. I think, on a bipartisan basis, there’s an interest on staying as far away from these issues as possible,” said Derek Muller, a law professor at the University of Notre Dame, who wrote an amicus brief in the case that wasn’t in support of either party.Trump’s lawyers offer five reasons to the court for why he should not be disqualified from the ballot. First, they argue that the word “officer” in the 14th amendment does not apply to the presidency. His lawyers also argue that his conduct on 6 January did not amount to insurrection and that the 14th amendment cannot be enforced absent implementing legislation from Congress. Last, they say, the Colorado supreme court cannot invent its own criteria for running for president nor can it interfere with the method the legislature has chosen for selecting presidential electors.The idea that the president isn’t an officer is nonsensical, lawyers for the six Colorado voters – four Republicans and two independents – who filed the case wrote in their own brief. “Section 3 does not give a free pass to insurrectionist former Presidents. The Constitution says the Presidency is a federal ‘office’. The natural meaning of ‘officer of the United States’ is anyone who holds a federal ‘office’,” they write.Trump’s arguments to the court essentially amount to the idea that “somehow there’s a Donald Trump specific loophole”, said Donald Sherman, a lawyer with Citizens for Responsibility and Ethics in Washington, which represents the Colorado voters.“Donald Trump’s arguments are not about January 6. They’re not about the fundamental goal of Reconstruction, the Reconstruction amendments, or the 14th amendment. Or section 3. They’re basically about creating an exception that allows Donald Trump to wriggle out of accountability.”They also point out that Trump’s conduct on 6 January would have clearly been understood to amount to insurrection by the framers of the 14th amendment. “The original public meaning of “engag[ing] in” insurrection extends to those who organize and incite it,” they wrote.The brief also notes that the federal constitution gives states the power to only allow candidates who are qualified to appear on the ballot – no federal legislation is necessary to enforce that.“The more I spend time on this case, the harder it seems for Trump,” Muller said. “I don’t think the court is interested in one-offs. The notion that the Colorado supreme court got Colorado law wrong is not gonna interest the court.”skip past newsletter promotionafter newsletter promotionThe challengers in the case have been bolstered by amicus briefs from historians who argue that the public would have understood the 14th amendment to apply to the president and to cover the kind of conduct Trump engaged in. Those kinds of arguments could hold sway with the court’s conservative justices who are professed adherents of originalism – understanding the constitution through its original public meaning.Hasen predicted the court would try to resolve the case without addressing of whether Trump engaged in insurrection – the most politically charged issue in the case.“I was thinking what are ways the court can side with Trump without weighing in on the merits of whether he committed insurrection,” he said. “One of them is Congress has to pass a statute [to enforce the disqualification provision]. If I had to lay down money on how Trump would win if he wins, I guess I’d put a few dollars down on that, but I’m not betting the farm.”A ruling upholding the Colorado supreme court’s decision would not mean that Trump would be automatically kicked off the ballot in every US state. Instead, each state would probably have to have its own legal proceedings to determine whether or not he should appear. Some states have already rejected such efforts ahead of the primary, setting up a potentially confusing and chaotic legal sprint to the general election.“I think people think if they say he’s ineligible it’s gonna end it, but it’s not,” Muller said. “It would be a state-by-state basis in the primary. He could still win the primary so there’s this whole separate layer of what the RNC would do at a convention if its candidate would be kept off the ballot in some states.”At the core of the case are two competing ideas of democracy. Trump and his attorneys argue that any effort to kick him off the ballot would be anti-democratic since it would prevent voters from choosing their preferred candidate for the presidency.“The court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots,” Trump’s lawyers wrote.The challengers and their supporters argue that protecting democracy requires banning those who attempt to subvert democracy from holding higher office. “Our democracy is not a chaotic free-for-all in which anyone can be elected. The voters are entitled to decide within the framework of the applicable rules,” the good government group Common Cause wrote in an amicus brief supporting the challengers.“If Section 3 of the Fourteenth Amendment (“Section 3”) is not enforced in this case, there is a genuine risk that our system of government will not survive,” they wrote. More

When Jill Habig had an office down the hall from Kamala Harris in California, Barack Obama was US president, abortion was a constitutional right and January 6 was just another date on the calendar. A lot has happened since then.On Thursday Habig, now president of the non-profit Public Rights Project (PRP), hopes her arguments will persuade the supreme court that Donald Trump is an insurrectionist who should be disqualified from the 2024 presidential election.Habig has filed an amicus brief on behalf of historians contending that section 3 of the 14th amendment to the constitution, which bars people who “engaged in insurrection” from holding public office, applies to Trump’s role in the January 6, 2021 attack on the US Capitol.The brief gives the supreme court’s originalists, who believe the constitution should be interpreted as it would have been in the era it was written, a taste of their own medicine. Conservative justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are self-declared originalists while Samuel Alito has described himself as a “practical originalist”.“Our goal was to bring an originalist historical perspective to the supreme court as it considered the meaning of section 3 of the 14th amendment,” Habig, a former special counsel to then California attorney general Harris, says by phone from Oakland. “The point we make with our historian colleagues is that the history of section 3 is actually very clear. It demonstrates that section 3 was intended to automatically disqualify insurrectionists.”The amicus brief, led by historians Jill Lepore of Harvard and David Blight of Yale, cites debates from the time in which senators made clear that their view that the provision that would not only apply for former Confederates but to the leaders of rebellions yet to come.View image in fullscreenHabig adds: “It was intended to apply not only to the civil war but also to future insurrections and it bars anyone who has betrayed an oath to uphold the constitution from becoming president of the United States.”The supreme court will hear arguments on a Colorado case in which Trump was stricken from the ballot; a decision in Maine is on hold. Other states have ruled in favor of keeping Trump on the ballot. The flurry of decisions have prompted debate over whether Trump can be fairly considered to have committed insurrection even though he has not been found guilty in a court of law – at least not yet.Habig, who founded the PRP in 2017, says yes. “It’s clear historically that there was no requirement of a conviction or even of charges, that the framers intended section 3 to be self-executing. The brief goes through a number of examples of people who had taken part in the secession and been on the Confederate side actually petitioning Congress for exceptions. There’s a lot of evidence that it was self-executing. There was no need for a particular conviction.”She adds: “The evidence that we have seen and heard and watched with our own eyes over the last few years has made it quite clear that President Trump lost an election in 2020 and has spent the months and years since then trying to overturn the results of that election in a variety of ways, including people marching to the Capitol and invading the Capitol.”Indeed, Blight has pointed out that the US Capitol was never breached during the civil war but was on January 6. Habig comments: “It’s difficult to argue with a straight face that these activities don’t qualify for section 3.”Still, there are plenty of Republicans, Democrats and neutrals who warn that the 14th amendment drive is politically counterproductive, fueling a Trumpian narrative that state institutions are out to stop him and that Joe Biden is the true threat to democracy. Let the people decide at the ballot box in November, they say.Habig counters: “It’s important to note that the American people did decide in 2020. We had a political process and then we had a president of the United States who attempted to overturn that political process. ”View image in fullscreenSpectacular as it was, the January 6 riot did not occur in a vacuum. Habig and her work at the PRP place it in a wider context of a growing movement to harass and threaten election officials and to interfere with the administration of elections. She perceives a direct line between Trump’s “big lie” and threats to democracy across the country today.“Regardless of this particular case, the threat isn’t over. It’s actually intensifying. We’re just seeing an array of efforts to rig the rules of the game against our democracy and it’s part of why we’re investing a lot of resources into protecting election officials this cycle, and to litigating and advancing voting rights and free and fair elections this year.”How did America get here? A turning point was the supreme court’s 5-4 decision in 2013 to strike down a formula at the heart of the Voting Rights Act, so that voters who are discriminated against now bear the burden of proving they are disenfranchised. Since then states have engaged in a barrage of gerrymandering – manipulating district boundaries so as to favor one party – and voter suppression.Habig reflects: “The gutting of the Voting Rights Act by the supreme court left states to themselves to rewrite the rules of the game in a variety of ways that disenfranchised voters and continued to rig maps against their systems and fair representation.skip past newsletter promotionafter newsletter promotion“We’ve seen the supreme court take itself out of the game of protecting other fundamental rights like abortion and throw that back into the states. What that’s creating is a lot of volatility at the state and local level as officials try to rewrite the rules or pick up the pieces and protect their constituents’ rights. What we’re trying to do is help state and local officials across the country use the power that they have to fight back and advance civil rights in all the ways that they can.”The PRP is building a rapid response hub to provide legal support for 200 election officials to combat harassment and intimidation and targeting election deniers. It is pursuing litigation against gerrymandering, the disqualification of legitimate ballots and state officials who try to prevent voters weighing in on ballot measures to advance abortion rights.“This is an all out effort to make sure that we don’t have death by a thousand cuts for our democracy this year,” Hebig says. “We are potentially less likely to see one central threat like we did on January 6 or even in the 2020 election. We’ve seen some of the larger counties like Maricopa county, Arizona, Philadelphia, Detroit et cetera, who have been targets in the past, have more resources to fight back.“What we’re most concerned about is the soft underbelly of our democracy, which is the smaller, less-resourced jurisdictions that just don’t have all of the capacity they need to push back against this harassment and intimidation. Because of our decentralised system, election deniers who are intent on disrupting our elections and disrupting the outcome of our election don’t have to mount a huge effort in one place.“They can pick apart jurisdiction by jurisdiction, invalidate 250 ballots here, and a thousand ballots there and 500 there, challenge absentee ballots, disrupt targeted polling places and that in the aggregate can actually change election results, sow disillusionment and distrust in our system and have the same or even worse aggregate outcome in terms of undermining the integrity of our election. That’s what we’re mobilising to prevent.”There was no greater measure of America’s ailing democracy than the 2022 decision to overturn Roe v Wade, the ruling that effectively made abortion legal nationwide, by supreme court justices appointed by presidents who lost the national popular vote. But since then, in a series of ballot measures in individual states, abortion rights have prevailed.Habig reflects: “Every single time that has been put to voters, abortion rights have won. As a result, we’re actually starting to see a lot of overlap between the reproductive rights fight and the democracy fight because this battle over abortion is fuelling additional efforts to break the rules and prevent voters from having a meaningful say in their rights. We’re mobilising on both fronts because the future of both is interconnected.”View image in fullscreenPRP says it has worked with local elected officials to provide legal guidance and filed dozens of amicus briefs in key reproductive rights cases, secured legal access to abortion for 6.5 million people. Habig explains: “We’re working with state and local officials to overturn criminal abortion bans at the state level.“We’re working to poke holes in existing criminal bans when there’s not a path to overturn them right away. Then we’re working to hold crisis pregnancy centers accountable for deception of women and patients; these are anti-abortion centers that masquerade as health clinics that provide comprehensive healthcare. We’re looking at this multi-pronged approach state by state and across the country.”Habig, a political strategist who was deputy campaign manager for Harris’s first Senate election campaign in 2016, has no doubt that democracy and abortion rights will play a big part in the November election.“I appreciate President Biden’s clarity on democracy and the constitution and his leadership on the issue. I do think it’s important for people to understand what democracy means and for their real lives. It can sound abstract sometimes and like an academic debate but bringing it down to the level of, do you have autonomy over your future and your community, do you have autonomy over your own body, is important for people.”She adds: “That’s why we’ve seen in cases when we’re talking about the fundamental right to vote, people get that. When we’re talking about their autonomy, they get it. When they’re talking about their dignity in the workplace, people get that and feel that on a visceral level. It’s important that we work to build a democracy that actually delivers so that people can feel the value of it in their daily lives.” More