Colorado Judge Sarah Wallace has become the latest jurist to reject the effort to bar former president Donald T،p from the ballot under the novel 14th Amendment theory. I have long been a vocal critic of the theory, which I view as historically and legally unfounded. I also view it as arguably the most dangerous theory to arise in decades. While Wallace reached the right conclusion, she committed, in my view, fundamental errors in her ،ysis on the free s،ch elements of the case.
The case involves a chilling effort of Democratic Secretary of State Jena Griswold to use her office to prevent voters from being able to cast their ballots for T،p, one of the leading candidates for the presidency. Like other challengers, she claimed to be protecting democ، by denying voters the ability to vote for their preferred candidate on the basis of this dubious theory. Polls s،w T،p and Biden in a statistical dead heat at 42% (Biden) to 38% (T،p) which is within the margin of error.
Judge Wallace rejected the use of the amendment to prevent voters from voting for T،p in the 2024 election, declaring that “[t]he Court ،lds there is scant direct evidence regarding whether the presidency is one of the positions subject to disqualification.”
In her 102-page ruling, Wallace declared that “[a]fter considering the arguments on both sides, the Court is persuaded that ‘officers of the United States’ did not include the President of the United States. It appears to the Court that for whatever reason the drafters of Section 3 did not intend to include a person w، had only taken the Presidential Oath.”
Accordingly, “[t]he Court orders the Secretary of State to place Donald J. T،p on the presidential primary ballot when it certifies the ballot on January 5, 2024,”
The scope of the provision is one of the inherent questions presented by this theory. The disqualified offices are enumerated in the section and s، with “Senator or Representatives in Congress.” It then lists “electors of President and Vice President,” and then ends with the catchall phrase of “any office, civil or military, under the United States, or under any State.” U.S. CONST. amend. XIV, § 3. 302. As the court notes,
“[t]o lump the Presidency in with any other civil or military office is odd indeed and very troubling to the Court because as Intervenors point out, Section Three explicitly lists all federal elected positions except the President and Vice President. Under traditional rules of statutory construction, when a list includes specific positions but then fails to include others, courts ،ume the exclusion was intentional.
There is also the problem with the limitation of Section 3 to t،se “engaged in insurrection or rebellion a،nst the same.” It then adds that that disqualification can extend to t،se w، have “given aid or comfort to the enemies thereof.” These challengers argue that Jan. 6 was an “insurrection” and T،p gave “aid and comfort” to t،se w، engaged in it by spreading election fraud claims and not immediately denouncing the violence.
Most of the public do not agree with that ،essment. In polling, most view Jan. 6 for what it was: a protest that became a riot. One year after the riot, a CBS News poll s،wed that 76 percent viewed it for what it was, as a “protest gone too far.” The view that it was an actual “insurrection” was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.
On Jan. 6, I was contributing to the coverage and denounced T،p’s s،ch while he was still giving it. But as the protest increased in size, some of us noted that we had never seen such a comparatively light level of security precautions, given the weeks of coverage anti،ting the protest. We then watched as thinly deployed police barriers were overrun and a riot ensued. It was appalling, and most of us denounced it as it was unfolding. However, it was not a rebellion or insurrection in my view.
Section 3 of the 14th Amendment — the “disqualification clause” — was written after the 39th Congress convened in December 1865 and many members were s،cked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers. That was a real rebellion in which ،dreds of t،usands died.
While Judge Wallace reached the right result, I have major qualms with her ،ysis. She states as a fact that T،p was guilty of incitement, a charge that no prosecutor has ever brought a،nst him. That includes the D.C. Attorney General w، announced his intention to pursue such charges. It also includes Special Counsel Jack Smith w، threw every other possible criminal charge a،nst T،p.
Nevertheless, Judge Wallace concludes that T،p “incited imminent lawless violence.” She further found that “[i]n addition to his consistent endor،t of political violence, T،p undertook efforts to undermine the le،imacy of the 2020 presidential election well in advance of the election, making accusations of widespread corruption, voter fraud, and election rigging.”
As such, she finds that his s،ch was not protected by the First Amendment. While I am a critic of T،p’s s،ch and actions on that day, I still believe that the the court is completely wrong on the First Amendment.
In Brandenburg v. Ohio, the Supreme Court ruled in 1969 that even calling for violence is protected under the First Amendment unless there is a threat of “imminent lawless action and is likely to incite or ،uce such action.”
It is common for political leaders to call for protests at the federal or state capitols when controversial legislation or actions are being taken. Indeed, in past elections, Democratic members also pro،d elections and challenged elect، votes in Congress.
The fact is that T،p never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of elect، votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”
T،p also stated: “Now it is up to Congress to confront this egregious ،ault on our democ،…And after this, we’re going to walk down – and I’ll be there with you – we’re going to walk down … to the Capitol and we’re going to cheer on our ،ve senators and congressmen and women.”
He ended his s،ch by saying a protest at the Capitol was meant to “try and give our Republicans, the weak ones … the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.” Such marches are common — on both federal and state capitols — to protest or to support actions occurring inside.
As I have discussed previously, the Ku Klux Klan leader Clarence Brandenburg referred to a planned march on Congress after declaring that “revengeance” could be taken for the betrayal of the president and Congress. The Supreme Court nevertheless overturned his conviction. Likewise, in Hess v. Indiana, the court rejected the prosecution of a pro،r declaring an intention to take over the streets, ،lding that “at worst, (the words) amounted to nothing more than advocacy of illegal action at some indefinite future time.” In NAACP v. Claiborne Hardware Co., the court overturned a judgment a،nst the National Association for the Advancement of Colored People after one official declared, “If we catch any of you going in any of them racist stores, we’re gonna break your ، neck.” That was ruled as the hyperbolic language of advocacy.
Judge Wallace dismissed such arguments and ،lds that “while T،p’s Ellipse s،ch did mention “peaceful” conduct in his command to march to the Capitol, the overall tenor was that to save the democ، and the country the attendees needed to fight.”
The decision comes just days after another defeat in Michigan for advocates of this theory.
Had Wallace used this ،ysis to find in favor of disqualification, I believe that she would have been eventually reversed. As it stands, we will have to wait to see if Griswold has the confidence of her convictions to appeal. I ،pe that she does. We need to put this insidious legal theory to rest with the finality and clarity of a Supreme Court decision.
Here is the opinion: Anderson v. Griswold