Amici in Trump 14th Amendment case submit briefs to Supreme Court

Ginsberg, a central figure in the 2000 presidential election vote recount, has represented 4 of the past 6 Republican presidential nominees. Foley is Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and director of the election law program at The Ohio State University Moritz College of Law. Hasen is Professor of Law and Political Science at UCLA School of Law and director of the Safeguarding Democracy Project, which aims to preserve free and fair elections in the United States.

Section 3’s language “constitutes an independently operative legal bar; it requires no federal legislative action for a state election official or a state court to enforce it, as long as the state legislature has exercised its authority under Article II to authorize its own officials to make this determination.”

“State election officials and state courts need no congressional direction to enforce Section 3. They, no less than Congress, have the competence and obligation to interpret and apply the provision within the constraints of state and federal law—subject to ultimate judicial review before this Court and its determination of what constitutes insurrection.”

“Section 3 both disqualifies insurrectionists from office and empowers Congress to ‘remove such disability’ by ‘a vote of two-thirds of each House.’ The word ‘removed,’ both today and at the time of the Civil War, means ‘taking away something that already exists rather than forestalling something yet to come.’”

“It would beggar belief to say that state courts are powerless to enforce state election codes any time the controversy implicates an issue of federal constitutional law that has not been made the subject of a federal cause of action. On the contrary, the framers of the Fourteenth Amendment assuredly understood that ‘the State courts * * * have concurrent jurisdiction in all cases arising under the laws of the Union.’”

Read the brief here.

Akhil Reed Amar is Sterling Professor of Law and Political Science at Yale University; Vikram Amar is a former dean of the University of Illinois College of Law.

“[I]n one obvious and high-profile respect, Section Three as enacted went far beyond the early draft. It referred to all insurrections, past and future, and not merely to ‘the late insurrection’ of the 1860s. It laid down a rule for the benefit of generations yet unborn—for us today, if only we are wise enough and faithful enough to follow its words as written and intended.”

“On January 6, 2021, the Confederate flag made its way into America’s citadel, as it had not on February 13, 1861—all because of what Donald Trump did do and did not do, over the course of many weeks, as recounted by the trial court in this case.”

“Certain inactions loom especially large when a current officer, with special obligations to affirmatively thwart other insurrectionists—indeed, other insurrectionists who have been egged on by that very officer—instead sits on his hands, smiling, as chaos erupts around him. This is precisely the case of Donald Trump.”

“Our democracy allows We the People to democratically protect Ourselves, and the most obvious way We do this is through the Constitution. In the 1860s, We the People carefully considered recent, vivid, and existential threats to democracy itself, and Our answer was Section Three.”

Read the brief here.

“Even though children and future generations are not parties to this case, they will endure its long-lasting effect from the 2024 presidential election certainly, but also in the decades to follow if their democratic institutions cannot effectively respond to future attempts at ‘insurrection or rebellion’ against the Constitution of the United States…”

“The perpetuity of the Republic depends, in part, on the power of the Court to interpret and enforce the counter-majoritarian constitutional guardrails, like Section 3, to ensure that the nation our children and future generations inherit is not governed by those who ‘shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof.’”

“It is a profoundly important constitutional question for our children, and theirs, whether the voters of a single election can vote into the Executive Office of the President any person who may be found to have committed insurrection or rebellion against the Constitution of the United States in a lawful proceeding in an appropriate venue, especially when that duly-elected President may then pardon other insurrectionists and appoint to high offices those who would ignore the rule of law and disavow an oath to defend the U.S. Constitution and the Republic.”

“The Court’s role in upholding the Fourteenth Amendment, including Section 3, is also to protect the equal rights of those not yet eligible to vote, but who one day will be – children and future generations.”

Read the brief here.

Founded in 1940 by Justice Thurgood Marshall, the NAACP Legal Defense & Educational Fund is the nation’s first and foremost civil rights law organization. For more than eight decades, LDF has worked to dismantle racial discrimination and achieve the guarantees of equal citizenship that are enshrined in the Fourteenth Amendment to the United States Constitution.

“There was also a practical concern about how insurrectionists would respect the rights of those whom they did not believe were entitled to rights. Ultimately, Congress resolved this issue by passing Section 3 of the Fourteenth Amendment. Its purpose was not vengeance, but ensuring a government that was rooted in respect for the political process and all citizens.”

“Section 3, like all other substantive provisions of the Reconstruction Amendments, is self-executing. As the Colorado Supreme Court correctly explained, any other interpretation ‘would lead to absurd results’—results that would undermine our most fundamental values as a constitutional Republic committed to the principle of equal citizenship.”

“The Reconstruction Amendments were enacted to ensure that the worst abuses in our nation’s history are not repeated and to achieve the fullest ideals of our democracy. But those Amendments are effective only when those responsible for applying them have the courage to do so.”

Read the brief here.