RNC Urges Supreme Court to Settle 14th Amendment Ballot Challenges

Republican presidential candidate former President Donald Trump delivers remarks during a campaign rally at the Reno-Sparks Convention Center on Dec. 17, 2023, in Reno, Nevada. Justin Sullivan/Getty Images

The Republican National Committee (RNC) and National Republican Congressional Committee (NRCC) submitted an amicus brief urging the U.S. Supreme Court to settle—once and for all—the legal issues surrounding the 14th Amendment challenges to former President Donald Trump’s eligibility.

While the organizations do not officially endorse any political candidates, they have an interest in being able to nominate candidates of their choice, and such challenges have allowed courts to supersede political parties’ authority in several jurisdictions.

Attorneys for President Trump recently revealed there have been at least 60 such challenges across the country. This novel legal theory that President Trump, the GOP frontrunner, cannot run for office under Section 3 of the 14th Amendment rests on the idea that Jan. 6, 2021, constituted an insurrection, and individual courts can issue rulings to this effect and order him struck from any ballot.

This is a “historically unprecedented” effort and fraught with risk, the Republican organizations argue. They suggest that rulings to disqualify President Trump, which to date have not gone into effect, were partisan.

“The Colorado Supreme Court was the first to take the bait. It should have taken the other path,” the brief reads. “Given the obvious risk of escalation as political opponents fight to have each other removed from the ballot, even President Trump’s most public critics hope that cooler heads prevail.”

Retaliation

In the wake of the Colorado disqualification decision, some Republican lawmakers proposed the idea of banning President Joe Biden from the ballot in retaliation to what they viewed as an absurd and partisan ruling.

The Republican organizations argue that the Colorado interpretation of insurrection and subsequent ruling is so broad as to allow for several hypotheticals and “cause anarchy”:

• President Joe Biden, Vice President Kamala Harris, and several of their staff members who marched after the death of George Floyd in 2020 to support rioters who had stormed the White House, injured police officers, and forced the president to shelter in a bunker could be struck from the ballot as aiding insurrectionists
• Rep. Maxine Waters (D-Calif.) encouraged violent behavior by saying, “If you see anybody from that Cabinet in a restaurant, in a department store, at a gasoline station, you get out, and you create a crowd, and you push back on them” before several Democrat supporters confronted Trump administration officials, including a mass shooting that seriously wounded Rep. Steve Scalise (R-La.), and would therefore be barred from running for reelection
• Left-wing, pro-Palestine protesters had stormed the White House complex after receiving “vocal support” from Democrat officials, who should then be barred from office under the Colorado ruling.

“Just like the events underlying the Colorado Supreme Court’s theory, state officials and Americans in general are divided in how to view these events,” they argue. “But letting state officials in their own judgment remove the offenders from the ballot or nullify federal authority is not something a Reconstruction Congress would prescribe.”

State Versus Federal Authority

The Republican organizations argue that the Colorado Supreme Court’s interpretation of Section 3—that it disqualifies a presidential candidate at the primary stage on a state-by-state basis and is self-executing—is “implausible.”

“According to the court, the Reconstruction Congress in ratifying Section Three of the Fourteenth Amendment gave States—including former Confederate States—the power to independently decide national candidates’ qualifications with no congressional permission,” the brief reads. “Its decision means the Reconstruction Congress gifted state officials the power to unilaterally displace the people’s ability to select the candidate of their choice for federal office.”

The 14th Amendment was ratified after the Civil War, meant to extend citizenship and equal rights to all persons born and naturalized in the United States, i.e. former slaves. Section 3 was added to prevent military officers, as well as federal and state officials who joined the Confederacy, from returning to hold public office without a two-thirds vote from Congress.

“If Section Three gave a wide range of state officials the power to disqualify any candidates who—in the state officials’ views—engaged in insurrection, then it would have been a self-sabotaging laughingstock,” they argued.

The Colorado Supreme Court’s interpretation would have been a “secessionist’s dream,” they added, allowing “a new constitutional basis to not only eliminate pro-Union candidates from the ballot, but also nullify acts of such officials, including their enactment or enforcement of federal legislation.”

The 14th Amendment is understood to have enlarged federal powers over state powers in this post-war era, and the Republican organizations echo several experts in arguing that the Colorado Supreme Court decision puts state authority over federal authority.

“State courts are the wrong forum for this dispute,” they argue. “Section Three did not give state officials power to frustrate the federal government or national will.”

“The Colorado Supreme Court rewrote the text of Section Three to prohibit not just “hold[ing] office” but running for it,” they add. Other amicus brief authors had submitted to the Supreme Court similar arguments that Section 3 is not meant to be applied during the primary process, but would allow for Congress to remove the disability in a vote after the general election.

The Colorado GOP had appealed to the U.S. Supreme Court after the decision, asking whether the ruling infringed on the First Amendment rights of political parties. The Republican organizations reiterated this question and argued the state had “intruded” on the primary process with its ruling.

“With the stakes so high, this Court should grant certiorari and reject the Colorado Supreme Court’s reimagination of Section Three,” they argue.

27 States

Attorneys general from Indiana, West Virginia, 25 other states, and the Arizona legislature, submitted a separate brief asking the Supreme Court to do much the same and head off the impending “chaos” that the Colorado decision is poised to create.

Courts have historically shown restraint around political issues, they argue, and the Colorado Supreme Court did the opposite.

“Amid a hotly contested election, it has barred a former President and leading candidate from its presidential ballot,” the brief reads.

They predict “vast consequences that reach far beyond Colorado,” which were already seen when Maine followed in Colorado’s footsteps and ruled President Trump ineligible for the ballot the same month.

“No State is an electoral ‘island’ because ’the impact of the votes cast in each State is affected by the votes cast‘—or, in this case, not cast—’in other States,'” the brief reads. ”The Amici States have a strong interest in protecting their electorates from actions that dilute their citizens’ choices.”

“It threatens to throw the 2024 presidential election into chaos,” they argue.

They further argue that the court allowed the major question of “insurrection” to be decided on “purely political judgments—not legal ones.”

“If the Colorado decision stands ... many Americans will become convinced that a few partisan actors have contrived to take a political decision out of ordinary voters’ hands.”