THE FORUM: NORTHWESTERN’S PREMIER LEGAL BLOG
Ohio’s Issue 1 and the Future of Constitutional Abortion Access
By: Eliana Aemro Selassie
Edited by: Jared Fischer and Angie Chung
On Tuesday, November 7, Ohio residents voted to adopt abortion access into the state’s constitution. The ballot measure, referred to as Issue 1, has been a contentious topic in Ohio state politics since the reversal of Roe v. Wade in June of 2022. The decision was particularly impactful given that Ohio is considered a conservative state. [1] The overturning of the landmark Supreme Court decision came as a result of the Dobbs v. Jackson Women’s Health Organization ruling. [2] The Dobbs ruling granted states greater autonomy over abortion laws, prompting many liberal states to work to protect abortion access while an increasing number of conservative states are seeking to restrict it . Abortion is currently outlawed in 14 states, leaving pro-abortion activists and politicians looking for ways to protect abortion access as abortion laws have since emerged as the responsibility of state governments. [3] The results of Ohio’s Issue 1 vote provide insight into the nature of constitutional abortion post-Roe v. Wade and the importance of state legislation to protect abortion access.
The outcome of Issue 1 in Ohio is part of a growing phenomenon across the United States where abortion access is being adopted into state constitutions. The overturning of Roe v. Wade has left states with greater control over abortion laws, pushing many state governments to turn to ballot measures like Issue 1 in Ohio to better understand voters’ stances on abortion. The Ohio decision passed by a vote of 57% in favor and 43% against; this signifies that abortion will be considered a state constitutional right in Ohio, making abortion access protected under Ohio state law and granting greater freedom to Ohio residents to access abortion. [4] State constitutions can play a fundamental role in determining the rights of individuals at the state level and can be adeptly amended to enshrine new rights, making them an ideal tool to further protect abortion access after the reversal of Roe v. Wade.
Several other states have acted to adopt abortion rights into their state constitutions, particularly in liberal states that have moved swiftly to protect abortion rights. Since the reversal of Roe v. Wade, residents have voted in favor of protecting abortion access on all the occasions where abortion has appeared on ballots. [5] Among the six other states that have held votes on whether to enshrine abortion access into state constitutions, all ended favorably to defend abortion access. This was seen in states such as California, Michigan, and Vermont, which passed constitutional amendments in favor of abortion access in 2022. [6] In addition to liberal states, conservative states have also rejected efforts to restrict abortion access, for instance in Kansas and Kentucky. Kansas residents voted against an amendment to the state’s constitution stating that there “was no right to an abortion” in Kansas. [7] Kansas was the first state to have a vote on abortion access since the Dobbs decision, where 59% voted against the amendment and 41% voted in favor. The Kansas decision was particularly pivotal given the state’s majority conservative population. During the 2020 presidential election, Biden only won five of the 105 counties in Kansas; however, in the recent abortion vote, abortion rights won 19 of the 105 counties in the state. [8] Similarly, in Kentucky, voters rejected a constitutional amendment to permanently ban abortion in December of 2022. They opposed the addition of this amendment because that would allow for trigger laws––implemented immediately after the reversal of Roe v. Wade––to take effect and be protected under the state’s constitution. [9] These votes further indicate how state constitutions can uphold abortion access, even in conservative states, and the influential nature of constitutional amendments.
Nonetheless, enshrining abortion access into state constitutions still poses a number of challenges, particularly in conservative states. In February 2023, the Kentucky Supreme Court voted in favor of maintaining the state’s strict abortion laws, restricting abortion access almost entirely. This decision came despite voters standing against the restrictive abortion bans, which have now gone into effect against voters’ wishes. [9] The efforts of voters to support abortion access in the state have now been largely ignored by the Kentucky government, illustrating the challenges of effectively implementing abortion rights into state constitutions. Similarly, the recent Ohio decision has faced criticism and efforts to thwart the amendments to the state’s constitution. Ohio lawmakers are working to rid state judges of their ability to interpret the new abortion rights amendment just after the vote in favor of enshrining abortion access. Republican state representatives Jennifer Gross, Bill Dean, Melanie Miller, and Beth Lear are pushing to “remove jurisdiction from the judiciary” in a new anti-abortion initiative. This means the issue will fall onto the Ohio legislature to modify existing laws while taking public hearings and legal input into account. [4] Therefore, there are still a growing number of challenges to constitutionally protected abortion that may arise, particularly in conservative states where the governments may oppose the opinions of voters on abortion issues.
Enshrining abortion access into state constitutions provides states with a medium to effectively protect abortion rights. The consistent success of abortion ballot measures across the nation illustrates the power of individual states to protect abortion access. Furthermore, the autonomy of states over their constitutions provides them with greater decision-making power to solidify abortion as a constitutional right for state residents. These efforts will likely continue to be met by substantial opposition among conservative lawmakers. However, constitutional abortion access can act as a new avenue to protect abortion rights and provide greater hope for abortion rights activists after the tumultuous outcomes of the Dobbs decision. This is particularly significant as a growing number of Democratic representatives and senators in Congress are moving to codify abortion access into federal law but face backlash from their Republican counterparts, implying that protecting abortion access at the state level is an important first step [10]. In the post-Roe v. Wade era, preserving abortion access under state constitutions will likely be a new pathway that residents can employ to ensure their opinions on abortion access are dutifully heard, as well as a strategy legislators can use to protect abortion access under state law.
Notes:
Maher, Kris, and Jon Kamp. 2023. “Ohio Voters Enshrine Abortion Access in State Constitution.” The Wall Street Journal. https://www.wsj.com/politics/elections/election-day-ballots-ohio-abortion-maine-texas-colorado-d9922480.
Dobbs v. Jackson Women's Health Organization." Oyez. Accessed November 14, 2023. https://www.oyez.org/cases/2021/19-1392.
“Interactive Map: US Abortion Policies and Access After Roe.” 2023. Interactive Map: US Abortion Policies and Access After Roe | Guttmacher Institute. https://states.guttmacher.org/policies/florida/abortion-statistics.
Hendrickson, Samantha. 2023. “Republican faction seeks to keep courts from interpreting Ohio's new abortion rights amendment.” AP News. https://apnews.com/article/ohio-abortion-overthrow-judicial-powers-77a68c1e6ee6fc79462f6aaf4ea1a323.
Bentahar, Lyna, and David Leonhardt. 2023. “Abortion Access Keeps Winning Elections.” The New York Times. https://www.nytimes.com/2023/05/11/briefing/abortion-access-ballots-us-elections.html.
Lerer, Lisa, and Kate Zernike. 2023. “Issue 1: Why Ohio’s Abortion Ballot Question Is Confusing Voters.” The New York Times. https://www.nytimes.com/2023/11/02/us/abortion-ballot-ohio-vote.html.
Lysen, Dylan, Laura Ziegler, and Blaise Mesa. 2022. “Results: Kansas voters decide 'no' on the abortion amendment : Live Coverage: 2022 Primaries.” NPR. https://www.npr.org/sections/2022-live-primary-election-race-results/2022/08/02/1115317596/kansas-voters-abortion-legal-reject-constitutional-amendment.
Ewall, Sarah. 2022. “How the anti-abortion amendment was defeated in Kansas.” CBS News. https://www.cbsnews.com/news/kansas-abortion-vote-results-how-amendment-was-defeated/.
McCammon, Sarah. 2023. “Kentucky's Supreme Court keeps abortion bans in place.” NPR. https://www.npr.org/2023/02/16/1156192879/abortion-kentucky-supreme-court-bans-roe-dobbs.
Adler, Libby, Martha Davis, and Wendy Permet. n.d. “Codifying Roe: here are the constitutional challenges a federal law legalizing abortion may face, experts say.” College of Social Sciences and Humanities. Accessed November 14, 2023. https://cssh.northeastern.edu/codifying-roe-here-are-the-constitutional-challenges-a-federal-law-legalizing-abortion-may-face-experts-say/.
Bibliography:
Adler, Libby, Martha Davis, and Wendy Permet. n.d. “Codifying Roe: here are the constitutional challenges a federal law legalizing abortion may face, experts say.” College of Social Sciences and Humanities. Accessed November 14, 2023. https://cssh.northeastern.edu/codifying-roe-here-are-the-constitutional-challenges-a-federal-law-legalizing-abortion-may-face-experts-say/.
Bentahar, Lyna, and David Leonhardt. 2023. “Abortion Access Keeps Winning Elections.” The New York Times. https://www.nytimes.com/2023/05/11/briefing/abortion-access-ballots-us-elections.html.
Ewall, Sarah. 2022. “How the anti-abortion amendment was defeated in Kansas.” CBS News. https://www.cbsnews.com/news/kansas-abortion-vote-results-how-amendment-was-defeated/.
Hendrickson, Samantha. 2023. “Republican faction seeks to keep courts from interpreting Ohio's new abortion rights amendment.” AP News. https://apnews.com/article/ohio-abortion-overthrow-judicial-powers-77a68c1e6ee6fc79462f6aaf4ea1a323.
Lerer, Lisa, and Kate Zernike. 2023. “Issue 1: Why Ohio’s Abortion Ballot Question Is Confusing Voters.” The New York Times. https://www.nytimes.com/2023/11/02/us/abortion-ballot-ohio-vote.html.
Lysen, Dylan, Laura Ziegler, and Blaise Mesa. 2022. “Results: Kansas voters decide 'no' on the abortion amendment : Live Coverage: 2022 Primaries.” NPR.
Maher, Kris, and Jon Kamp. 2023. “Ohio Voters Enshrine Abortion Access in State Constitution.” The Wall Street Journal. https://www.wsj.com/politics/elections/election-day-ballots-ohio-abortion-maine-texas-colorado-d9922480.
McCammon, Sarah. 2023. “Kentucky's Supreme Court keeps abortion bans in place.” NPR. https://www.npr.org/2023/02/16/1156192879/abortion-kentucky-supreme-court-bans-roe-dobbs.
"Dobbs v. Jackson Women's Health Organization." Oyez. Accessed November 14, 2023. https://www.oyez.org/cases/2021/19-1392.
“Interactive Map: US Abortion Policies and Access After Roe.” 2023. Interactive Map: US Abortion Policies and Access After Roe | Guttmacher Institute. https://states.guttmacher.org/policies/florida/abortion-statistics.
Alexander v. South Carolina State Conference of the NAACP: What are the key distinctions between partisan and racial gerrymandering?
By: Pavan Acharya
edited by: Jack Pacconi and micah sandy
This term, the U.S. Supreme Court is considering cases related to social media, maritime law, and gun rights, among other hot-button topics. Alexander v. South Carolina State Conference of the NAACP, one of the highest profile cases justices will consider over the coming months, could significantly impact voting rights for non-white voters. The Supreme Court will release its decision on the case next year, which will determine whether South Carolina’s 1st congressional district was racially gerrymandered to benefit Republicans. [1] Gerrymandering refers to the political manipulation of boundaries within an electoral constituency to benefit one party. If justices rule in favor of the state of South Carolina, a likely result given the Court’s 6-3 conservative majority, the Court will allow future redistricting by state legislators and courts that could further limit the voting power of non-white — and specifically Black — voters.
In this case, Justices will determine the validity of a federal district court’s ruling that District 1’s boundaries were a product of gerrymandering. Since South Carolina’s redistricting took place in 2022, Republican Rep. Nancy Mace saw her margin of victory in District 1 increase from 1% in 2020 to 14% in that year’s election. [2] The redistricting had moved 30,000 Black residents — or two-thirds of Black voters in Charleston County — out of Mace’s district and into District 6, represented by Rep. Jim Clyburn, the sole Democrat in South Carolina’s congressional delegation. However, conservative justices on the Court expressed skepticism about the lower court’s decision during the case’s hearing in mid-October, suggesting there was insufficient evidence to support the assertion that the remapped district was a product of racial gerrymandering. If the Supreme Court overturns the decision, then it could create a more defined legal difference between racial and partisan gerrymandering cases, which often yield different rulings from one another.
The Supreme Court has a history of distancing itself from partisan gerrymandering cases, as shown by its past decisions. The high court’s 2019 decision in Rucho v. Common Cause, a landmark Supreme Court case regarding gerrymandering, said, “partisan gerrymandering claims present claims beyond the reach of federal courts.” [3] Though Rucho was a setback for voter’s rights advocates as it determined the Supreme Court cannot rule in solely partisan gerrymandering cases, the Justices have since heard cases related to racial gerrymandering. One of these cases was Allen v. Milligan, a 2022 case in which the plaintiffs contended that Alabama’s 2021 redistricting plan discriminated against Black voters in the state. Though Alabama’s population is around 34% Black, just one district held a Black majority under the 2021 plan. Justices ruled 5-4 in favor of the plaintiffs, agreeing with their assertions that Alabama’s congressional districts violated Section 2 of the Voting Rights Act of 1965. [4] For Allen, the Court implemented a three-pronged framework for evaluating claims under Section 2, established in the 1986 case Thornburg v. Gingles. [5] Under the framework, the plaintiffs would have to have proven a minority group is geographically compact and large enough to be a majority in a “reasonably configured district”; is politically cohesive; and does not have equal access to the political process. The three-pronged approach, however, is not expected to be considered in the Court’s forthcoming decision in Alexander since this case concerns potential violations of the Constitution rather than the Voting Rights Act.
Although Alexander is also a racial gerrymander case, the grounds for the case are different. [6] The district court held that South Carolina’s congressional map violated constitutional safeguards against race discrimination rather than Section 2 of the Voting Rights Act itself. Therefore, the three-pronged approach established in Thornburg v. Gingles is irrelevant. Instead, the Court will decide whether the redistricting act was racial or partisan gerrymandering, which the state of South Carolina contends. Though previous Supreme Court decisions have been aimed at preventing discrimination toward voters based on political affiliation, it is unclear whether these protections apply to gerrymanders, racial or partisan. But, if the Supreme Court finds that the gerrymander was solely partisan, the lower court’s ruling will likely be overturned due to the precedent established by Rucho. If the ruling is overturned, the Supreme Court could set a new precedent that racial gerrymandering claims can be averted if the party that created those maps contends that they are the product of “partisan gerrymandering,” as South Carolina did in its arguments. [7] In an amicus brief filed on behalf of the South Carolina State Conference of the NAACP, lawyers wrote that “the correlation between race and party does not insulate excessive race-based redistricting decisions from judicial scrutiny.” If the Court rules in favor of South Carolina, then the legal line between race and partisanship may become even more defined.
Notes:
1. Amy Howe. “Justices Question Finding That S.C. District Was Unconstitutional Racial Gerrymander.” SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander/.
2. Mark Sherman. “The Supreme Court Signals Support for a Republican-Leaning Congressional District in South Carolina.” AP News, October 11, 2023. https://apnews.com/article/supreme-court-redistricting-south-carolina-racial-gerrymander-840b39465b24b8d82b334dda53c908fa.
3. “Rucho v. Common Cause.” Legal Information Institute. Accessed November 15, 2023. https://www.law.cornell.edu/supremecourt/text/18-422.
4. “Merrill v. Milligan (Now Allen v. Milligan).” Merrill v. Milligan (now Allen v. Milligan) | League of Women Voters. Accessed November 15, 2023. https://www.lwv.org/legal-center/merrill-v-milligan.
5. “Allen v. Milligan.” Oyez. Accessed November 15, 2023. https://www.oyez.org/cases/2022/21-1086.
6. Ian Millhiser. “The High Stakes in a New Supreme Court Showdown over Gerrymandering.” Vox, October 5, 2023. https://www.vox.com/scotus/2023/10/5/23893286/supreme-court-voting-rights-gerrymandering-race-south-carolina-alexander-naacp.
7. “Friend of the Court Brief - Alexander V. South Carolina State Conference of NAACP.” Campaign Legal Center. Accessed November 15, 2023. https://campaignlegal.org/document/friend-court-brief-alexander-v-south-carolina-state-conference-naacp.
Bibliography:
“Allen v. Milligan.” Oyez. Accessed November 15, 2023. https://www.oyez.org/cases/2022/21-1086.
“Friend of the Court Brief - Alexander V. South Carolina State Conference of NAACP.” Campaign Legal Center. Accessed November 15, 2023. https://campaignlegal.org/document/friend-court-brief-alexander-v-south-carolina-state-conference-naacp.
Howe, Amy. “Justices Question Finding That S.C. District Was Unconstitutional Racial Gerrymander.” SCOTUSblog, October 14, 2023. https://www.scotusblog.com/2023/10/justices-question-finding-that-s-c-district-was-unconstitutional-racial-gerrymander/.
“Merrill v. Milligan (Now Allen v. Milligan).” Merrill v. Milligan (now Allen v. Milligan) | League of Women Voters. Accessed November 15, 2023. https://www.lwv.org/legal-center/merrill-v-milligan.
Millhiser, Ian. “The High Stakes in a New Supreme Court Showdown over Gerrymandering.” Vox, October 5, 2023. https://www.vox.com/scotus/2023/10/5/23893286/supreme-court-voting-rights-gerrymandering-race-south-carolina-alexander-naacp.
“Rucho v. Common Cause.” Legal Information Institute. Accessed November 15, 2023. https://www.law.cornell.edu/supremecourt/text/18-422.
Sherman, Mark. “The Supreme Court Signals Support for a Republican-Leaning Congressional District in South Carolina.” AP News, October 11, 2023. https://apnews.com/article/supreme-court-redistricting-south-carolina-racial-gerrymander-840b39465b24b8d82b334dda53c908fa.
SUPREME COURT LIKELY TO VOTE TO UPHOLD SECOND AMENDMENT PROHIBITIONS ON INDIVIDUALS DEEMED DANGEROUS TO SOCIETY
By: Kunjal Bastola
edited by: Lauren levinson and alexandra dickerman
As of Nov. 14, 2023, there have been 37,490 gun violence deaths, according to the Gun Violence Archive.[1] An average of 70 women are shot and killed by an intimate partner every month.[2]
On Nov. 7, the United States Supreme Court heard oral arguments on a case that centered around the Second Amendment rights of people subject to domestic violence restraining orders. The case follows Zackey Rahimi from Texas, who became subject to a protective order by the state court in 2020 after physically assaulting his then-girlfriend and firing a gun at a bystander who witnessed the incident. As a result of the protective order, Rahimi was not allowed to possess a firearm. However, he violated the order on multiple occasions, including participating in five shootings that occurred in public places. In 2021, police searched Rahimi’s home, finding a rifle and a pistol.[3] He was charged with violating federal code 18 U.S.C. § 922(g)(8), which prohibits an individual from possessing a firearm if they are “subject to a court order that restrains [them] from harassing, stalking, or threatening an intimate partner.”[4]
Rahimi appealed the ruling, citing the law as unconstitutional. The U.S. Court of Appeals for the 5th Circuit overturned Rahimi’s conviction, citing the 2022 Supreme Court decision in New York State Rifle and Pistol Association Inc. v. Bruen 142 S. Ct. 2111, 213 L. Ed. 2d 387 (2022), the Court’s last major case regarding Second Amendment rights, where the Court ruled to uphold gun restrictions only if there is a “historical tradition of firearm regulation.”[5] The majority opinion in that case was written by Justice Clarence Thomas.[6]
Following the ruling in the Bruen case, with Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor dissenting, confusion formed in lower courts as to what framework should be used when considering gun laws in the present day.[7] In an interview with ABC News, Michael Siegel, a faculty member at Tufts School of Medicine who studies firearm violence, said, “The [New York State Rifle & Pistol Association v. Bruen] decision really opens up a whole new way of analyzing the legality of firearm regulation and so there is no experience really to go by, so it's essentially a free for all.”[8]
However, the Court seemed poised to contradict that ruling as J. Matthew Wright, the lawyer for Rahimi, was essentially forced to concede that his client was a dangerous person when Chief Justice John Roberts asked the following question: “To the extent that's pertinent, you don't have any doubt that your client's a dangerous person, do you?”[9]
Wright’s reply was that he wanted to know what would constitute a “dangerous person,” to which Chief Justice Roberts replied, “Well, it means someone who's shooting, you know, at people. That's a good start.”[10]
Wright conceded, saying, “That’s fair.”[11]
Wright’s argument centers around calling on the courts to find a similar ban in U.S. history as evidence to support upholding the gun law that lies at the center of the case. Solicitor General Elizabeth Prelogar, the lawyer for the United States, asked the Court to uphold this law, the same law that Rahimi was charged with violating in 2021. In her opening statement, Prelogar said, “As this Court has said, all too often, the only difference between a battered woman and a dead woman is the presence of a gun.”[12]
One justice who is key to watch as the Court decides on this case, likely in June or July 2024, is Justice Brett Kavanaugh; he is likely to be a major factor in deciding the outcome of this case.[13] Kavanaugh wrote a concurring opinion in the Bruen case, which Chief Justice Roberts signed. However, he emphasized in his opinion that “properly interpreted, the Second Amendment allows a “variety” of gun regulations.”[14]
It seems that the Court is likely to rule in favor of the federal law prohibiting certain individuals who are subject to domestic violence restraining orders from possessing a firearm, with justices indicating that the case of Rahimi falls under the historical tradition of limiting Second Amendment rights when it comes to dangerous individuals. However, the future of gun regulation in the nation, specifically confusion regarding the criteria for considering gun laws, is likely to remain unclear even after the Court rules in U.S. v. Rahimi.
Notes:
Gun Violence Archive,” Gun Violence Archive, Accessed November 14, 2023, https://www.gunviolencearchive.org/.
“Domestic Violence,” Everytown, Accessed November 14, 2023, https://www.everytown.org/issues/domestic-violence/#by-the-numbers.
Amy Howe, “Court to Hear Major Gun-Rights Dispute over Domestic-Violence Restrictions,” SCOTUSblog, November 6, 2023. https://www.scotusblog.com/2023/11/court-to-hear-major-gun-rights-dispute-over-domestic-violence-restrictions/.
Unlawful Acts, 18 U.S.C. § 922 (1968)
New York State Rifle and Pistol Association Inc. v. Bruen, 142 2111, 213 L. Ed. 2d 387 (S. Ct. 2022)
El-Bawab, Nadine. “Supreme Court Decision Creates Confusion over Which Firearm Restrictions Are Constitutional.” ABC News, January 13, 2023. https://abcnews.go.com/US/supreme-court-decision-creates-confusion-firearm-restrictions-constitutional/story?id=96364133.
United States v. Rahimi, U.S. Supreme Court (2023) (oral argument transcript) https://www.supremecourt.gov/oral_arguments/argument_transcripts/2023/22-915_986b.pdf
United States v. Rahimi, U.S. Supreme Court (2023) (oral argument transcript)
United States v. Rahimi, U.S. Supreme Court (2023) (oral argument transcript)
United States v. Rahimi, U.S. Supreme Court (2023) (oral argument transcript)
Roskam, Kelly. “Questions and Answers on U.S. v. Rahimi, the Major Gun Case before the Supreme Court during Its 2023–2024 Term.” Johns Hopkins Bloomberg School of Public Health, October 10, 2023. https://publichealth.jhu.edu/2023/questions-and-answers-on-us-v-rahimi-the-major-gun-case-before-the-supreme-court-during-its-2023-2024-term.
bibliography:
“Domestic Violence.” Everytown. Accessed November 14, 2023. https://www.everytown.org/issues/domestic-violence/#by-the-numbers.
El-Bawab, Nadine. “Supreme Court Decision Creates Confusion over Which Firearm Restrictions Are Constitutional.” ABC News, January 13, 2023. https://abcnews.go.com/US/supreme-court-decision-creates-confusion-firearm-restrictions-constitutional/story?id=96364133.
“Gun Violence Archive.” Gun Violence Archive. Accessed November 14, 2023. https://www.gunviolencearchive.org/.
Howe, Amy. “Court to Hear Major Gun-Rights Dispute over Domestic-Violence Restrictions.” SCOTUSblog, November 6, 2023. https://www.scotusblog.com/2023/11/court-to-hear-major-gun-rights-dispute-over-domestic-violence-restrictions/.
Roskam, Kelly. “Questions and Answers on U.S. v. Rahimi, the Major Gun Case before the Supreme Court during Its 2023–2024 Term.” Johns Hopkins Bloomberg School of Public Health, October 10, 2023. https://publichealth.jhu.edu/2023/questions-and-answers-on-us-v-rahimi-the-major-gun-case-before-the-supreme-court-during-its-2023-2024-term.
Can Trump Be Disqualified from the 2024 Presidential Ballot for Violating Constitutional Law?
By: Ana Cucalon
edited by: Colin crawford and valerie chu
Donald Trump’s latest legal woes accuse him of violating constitutional law during the Capitol riot on January 6th, 2020. The trial started Monday, October 30th, in Denver Colorado, and was initiated by six Colorado voters with the help of Citizens for Responsibility and Ethics in Washington. [1] Judge Sarah B. Wallace presided over the trial which focused on Section 3 of the 14th Amendment. She will have to decide whether or not the Amendment bars Trump from the 2024 presidential election, since it states:
No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. [2]
The trial primarily focused on two issues. First, on defining “engaged” in the 14th Amendment, and if by that definition Trump “engaged” in the Capitol riot. Second, on defining “insurrection,” and whether or not the Capitol riot was the kind of insurrection the 14th Amendment condemns. Generally, the trial covered the following nine topics: [3]
How often and on what basis does the Secretary of State exclude candidates based on constitutional deficiencies?
What is the process for drafting and approving the Major Party Candidate and Statement of Intent and who can revise or edit it?
What is the meaning and historical application of Section 3 of the 20th Amendment?
How should the 2022 revisions to 3 U.S.C. § 15 be addressed?
What is the history and application of Section 3 of the 14th Amendment?
Is Section 3 of the 14th Amendment self-executing?
Does Section 3 of the 14th Amendment apply to Presidents?
What is the meaning of “engaged” and “insurrection” as used in Section 3 of the 14th Amendment?
Did Intervenor Trump’s actions meet the standard set forth in Section 3 of the 14th Amendment?
From Monday, October 30th to Friday, November 3rd, the plaintiffs’ lawyers laid out their argument against Trump. To address Trump’s “engagement” in the riots they brought in witnesses Timothy J. Heaphy, the chief investigative counsel for the Jan. 6 committee; Peter Simi, a professor of sociology at Chapman University and an expert on political extremism; William C. Banks, a law professor at Syracuse University and an expert on presidential authority in national security; Representative Eric Swalwell, from the Democratic Party in California; Daniel Hodges, a Washington, D.C., police officer; and Winston Pingeon, a Capitol Police officer. Both officers were at the Capitol on Jan. 6. All testified that Trump held an active role in the riots whether from his incitement of violence through his speeches and social media posts, or through his inaction to prevent the riots.
To clarify the language of the 14th Amendment, Trump’s lawyers brought in Gerard Magliocca, a law professor at Indiana University and an expert on Section 3 of the 14th Amendment, to testify. He said that at the time of the Amendment’s ratification, “engaged” referred to “any voluntary act in furtherance of an insurrection, including words of incitement”, and “insurrection” referred to “any public use of force or threat of force by a group of people to hinder or prevent the execution of the law.” On the question of the court’s authority to disqualify a presidential candidate, Hilary Rudy, a deputy elections director in the Colorado secretary of state’s office, testified that the state was obliged to only allow candidates qualified for the presidency on the ballot, a verdict which she argues the court has full right to make.
In response, Trump’s lawyers brought in witnesses to either vouch for Trump’s attempt to prevent the violence at the riots or to argue that there was no violence at all. They included Kashyap Patel, a former chief of staff at the Defense Department; Katrina Pierson, a former spokeswoman for Mr. Trump’s campaign; Amy Kremer, an organizer of the Jan. 6 rally; Thomas Van Flein, general counsel and chief of staff to Republican Representative Paul Gosar of Arizona; and Tom Bjorklund, the treasurer of the Colorado Republican Party, who testified as a private citizen. Furthermore, witness Robert J. Delahunty, a law professor at the University of St. Thomas, testified for the defense that the concepts of “engaged” and “insurrection” in the 14th Amendment are too vague to be the basis for any legal action unless Congress were to agree on a definition in a separate trial.
The trial also briefly dealt with Section 3 of the 20th Amendment, which discusses succession, and the procedure if a President-elect does not qualify for presidency. The President-elect is the candidate who has presumably won the presidential election and is awaiting inauguration, whereas a presidential candidate has not won the election yet. The Amendment says Congress can decide what action to take when both the President and Vice President-elect are disqualified. [4] Trump’s attorneys argued that this disallows states from disqualifying him from the 2024 election, as that power rests in Congress, but lawyers from the plaintiff responded that this clause only applies to the President and Vice-President-elects, not candidates. [5]
The case, which presents unprecedented questions on constitutional law, has caused quite a lot of discourse among legal scholars. In an article due to be released next year, Professors William Baude and Michael Stokes Paulsen from the University of Chicago and the University of St. Thomas concluded that the 14th Amendment disqualifies Trump from holding office due to his engagement in the January 6th riots following Joe Biden’s win of the 2020 elections. They argue there is ample evidence proving Trump participated in the riots, considering his instigation of the march and his silence when the march turned violent. [6] Not all legal scholars agree. The controversy around the topic largely stems from the 14th Amendment’s context in a post-Civil War era, and whether or not that context applies to modern times. In addition, the Amendment’s broad language and the lack of recent precedent divide opinions. Critics argue that it is unreasonable for an amendment designed to disqualify Confederates from office to disqualify a 2024 presidential candidate. Nonetheless, scholars such as Professors Baude and Paulsen certify that the Constitution blatantly addresses and condemns Trump’s actions before, during, and after the Capitol riot. At the very least, they ask for the legal community to address what they refer to as a “vital constitutional issue,” a concern reflected in Judge Wallace’s refusal of the defendant’s request for the trial to be dismissed. [7]
While it is unclear what the verdict of the Colorado trial will be, it can be expected for the losing side to appeal. That would give the mostly conservative Supreme Court, with three justices appointed by Trump, the final verdict.
Notes:
Anderson et al. v. Trump, 2023CV32577, Colorado, (District Court, City and County of Denver, Colorado. 2023).
U.S. Const., Amend 14.S3.1
Anderson et al. v. Trump.
U.S. Const., Amend 20.S3.1
Astor, Maggie. 2023. “14th Amendment Trump Disqualification Trial Begins in Colorado.” (The New York Times, October 30, 2023). https://www.nytimes.com/2023/10/30/us/politics/trump-colorado-trial-14th-amendment-jan-6.html.
Liptak, Adam. 2023. “Conservative Case Emerges to Disqualify Trump for Role on Jan. 6.” (The New York Times, August 11, 2023). https://www.nytimes.com/2023/08/10/us/trump-jan-6-insurrection-conservatives.html.
Liptak, “Conservative Case Emerges to Disqualify Trump for Role on Jan. 6.”
Bibliography:
Anderson et al. v. Trump, 2023CV32577, Colorado, (District Court, City and County of
Denver, Colorado. 2023).
Astor, Maggie. 2023. “14th Amendment Trump Disqualification Trial Begins in Colorado.” The New York Times, October 30, 2023. https://www.nytimes.com/2023/10/30/us/politics/trump-colorado-trial-14th-amendment-jan-6.html.
Liptak, Adam. 2023. “Conservative Case Emerges to Disqualify Trump for Role on Jan. 6.” The New York Times, August 11, 2023. https://www.nytimes.com/2023/08/10/us/trump-jan-6-insurrection-conservatives.html.
U.S. Const., Amend 14.S3.1
U.S. Const., Amend 20.S3.1