Bruce Ackerman Misunderstands My Point About What Colorado is Doing and May Do [UPDATED to respond to Bruce's follow-up post]

Marty Lederman

In a post a couple of days ago, I explained (among other things) that although all the parties in Trump v. Anderson, and many of the amici, (mis)characterize Colorado as having acted to "enforce" Section 3 of the Fourteenth Amendment, that is not, in fact, what Colorado is doing (or would be doing, anyway, if it removed Donald Trump's name from the primary election ballot, which it hasn't done and likely won't ever do).

In the course of that post, I wrote that a state lacks any power to actually enforce Section 3, or any other federal qualification for office, for that matter, against any federal official or wannabe official.  A state court can't, for example, enjoin an individual from holding federal office, and state police can't restrain such a person from performing its functions.

Bruce Ackerman agrees with me on that discrete, important point.  Nevertheless, in a post entitled "Marty Lederman's Fundamental Mistake of Law," he writes:

[I]t does not follow, as [Marty] seems to suppose, that this principle also precludes Colorado from granting its Secretary of State the authority to exclude Trump from the state’s Republican primary if he is disqualified from the Presidency by the Fourteenth Amendment.  

I'm not sure what I wrote to give Bruce that impression, but it's the furthest thing from the truth.  Indeed, my post was intended to demonstrate precisely the opposite point--namely, that because Colorado is not taking any steps to "enforce" Section 3's disqualification (it's not purporting to enforce that Amendment and its ballot exclusion wouldn't have the slightest legal (or even practical) effect on whether Trump assumes office), its (hypothetical) exclusion of Donald Trump's name from the primary election ballot is not subject to Trump's objection that Colorado is imposing an additional “qualification” for Trump to hold office.  (According to Trump, Colorado has effectively required a candidate not to be subject to Section 3 ineligibility at the time of the primary election rather than on January 20, 2025.  But Colorado has done nothing of the sort.)  [UPDATE:  See Part Seven]. And, as I'll explain in another post tomorrow [UPDATE:  See Part Six], it also undermines the crucial predicate underlying Trump's argument that state officials and courts may not "enforce" Section 3 without congressional authorization (or in a way that Congress allegedly has "precluded").  

Of course, Trump has made other arguments against what Colorado did here, including that its ballot exclusion would be based on a mistake of law because he isn't disqualified from being President.  If the Court adopts one of those arguments (which I'm examining in my series of posts), then Trump might win on that ground.  The point of the post to which Bruce is responding, however, was to explain why a couple of Trump's arguments against the legality of Colorado's action are premised on a mistake of fact and law.

I believe my post was fairly clear on this point, and I'm genuinely surprised that Bruce read it to say the opposite.  Let me repeat two of the paragraphs here, however, just to drive the point home:

This case is, therefore, fundamentally different from the situation in U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995).  There, an Arkansas law prohibited the name of an otherwise-eligible candidate for the House of Representatives from appearing on the state's general election ballot if that candidate had already served three terms in the House.  As the Court explained, id. at 829-30, the "sole purpose" of that ballot exclusion was to try to prevent the election of longtime incumbents, and the effect of the ballot exclusion was to "make it significantly more difficult for the barred candidate to win the election," id. at 831--an election that was, of course, limited to persons filling out Arkansas ballots (because the race was for a House seat from Arkansas).  Here, by contrast, Colorado's purpose is not to prevent anyone's election but instead to "protect[] the integrity and practical functioning" of Colorado's own "political process" (Gorsuch, J., in Hassan); and the effect on the national election for President if Trump's name did not appear on the Colorado primary ballot would be negligible and speculative, at most.

Once one understands that Colorado is simply enforcing its own state-law rule prescribing exclusion of ineligible candidates from primary election ballots for purposes of state election management—a rule not confined to presidential candidates--one can see that Trump’s argument that Colorado is imposing an additional “qualification” for Trump to hold office (according to Trump, Colorado has effectively required a candidate not to be subject to Section 3 ineligibility at the time of the primary election rather than on January 20, 2025) rests upon a category error:  By declaring that candidates for President may not appear on its presidential primary ballot unless they meet certain conditions (including apparent eligibility to hold the office), Colorado is no more imposing extraconstitutional “qualifications” on persons holding that national office than Virginia did in 2012 when it excluded Rick Perry from its presidential primary ballot because he failed to timely submit the necessary number of voter signatures.  See Perry v. Judd, 471 F. App’x 219 (4th Cir. 2012).

I'm sure I've made many "fundamental mistake[s] of law" over the years--perhaps even in the past few days--but I'm fairly confident this ain't one of 'em. 

[UPDATE:  In a follow-up post, Bruce insists that we do disagree about something.  He states that "Lederman has an obligation to confront Allwright's decisive rejection of his view that, the Reconstruction Amendments are 'applicable only to general elections.'" I'm not even sure what it would mean for the Reconstruction Amendments to be "applicable only to general elections."  But whatever it means, it's not something I've ever said, written or thought.  (Whatever Bruce is quoting, I don't believe it's anything I've written.)  That is to say:  It's not my "view."

Bruce also writes that the Supreme Court should "assure that the Fourteenth Amendment, including Section 3, is enforced in party primaries as a matter of 'fundamental constitutional principle.'"

Here, there might be some difference between us.  The point of my original post is that Colorado would not be trying to "enforce" the Fourteenth Amendment if it were to remove Trump's name from the primary election ballot.  Nor would such an exclusion have any practical effect of "enforcing" that amendment, for the reasons I explained in my original post.]

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