A law professor has argued in a column for The New York Times that voters should be allowed to decide former President Donald Trump’s political fate next year, not state courts and election officials.
Kurt Lash, a professor at the University of Richmond School of Law, writes that the Supreme Court should take up the case and overturn the Colorado high court’s ruling for a reason cited by the Colorado judges in an earlier, unrelated case. The nation’s highest court will also now likely consider a decision late Thursday by Maine’s secretary of state to remove Trump from that state’s ballot as well.
He said that the Supreme Court should take up the case and overturn the Colorado high court’s ruling for a reason cited by the Colorado justices in an earlier, unrelated case.
In a previous decision, the Colorado court found that Section 3 of the 14th Amendment should be interpreted “in light of the objective sought to be achieved and the mischief to be avoided.”
Lash noted that in the case of Trump appearing on the ballot, the Colorado Supreme Court did not even take its own advice.
In his Friday column, Lash presented the historical context for Section 3 and looked at what Congress was trying to achieve with its passage in the immediate years following the Civil War.
“When Congress passed the 14th Amendment, there wasn’t a person in the Senate or House who worried about loyal Americans electing a former rebel like Jefferson Davis as president,” Lash wrote. “Instead, Republicans feared that the leaders of the late rebellion would use their local popularity to disrupt Republican Reconstruction policy in Congress or in the states. Section 3 expressly addressed these concerns and did so without denying loyal Americans their right to choose a president.”
While the debate has largely honed in on whether the president is an “officer” who takes an “oath,” Lash argued that “neither scholars nor courts” have focused on the first part of Section 3.
“The threshold issue is whether the framers and ratifiers thought that the president holds a ‘civil’ office ‘under the United States.’ This is a much more specific and historically difficult question,” Lash wrote.
Citing the column, Newsmax noted further:
Lash noted that Section 3 is concerned with state-level decision making and addresses three positions – the Senate, the House. and state-selected presidential electors – where leading rebels might use their popularity to thwart Republican-led Reconstruction policy.
Although it’s possible that the framers meant for Section 3 to include the office of the president by implication, “[i]t would be odd to stuff the highest office in the land into a general provision that included everything from postmasters to toll takers,” Lash said.
Doing so would be “remarkably negligent,” he said, as it was understood that the phrase “civil office under the United States” did not refer to the office of the president, “according to longstanding congressional precedent and legal authority.”
Going on to say that, to him, the wording of Section 3 “is ambiguous” when it comes to the office of president, Lash further argued that the Supreme Court should “limit the clause to its historically verifiable meaning and scope” and “let the people make their own decision about Donald Trump.”
