Comments - Trump v. Anderson
Today this was published:
Gerard Magliocca: “The Electoral Count Reform Act and Section 3”
February 15, 2024, 7:11 am Supreme Court , guest post from Rick Hasen
https://electionlawblog.org/?p=141452
connects important dots, provides opportunity for thinking through alternative outcomes
this is just to think out loud, not a finished effort, with everyone present:
This and other articles to which I have pointed, by way of wanting to understand others' perspectives and to obtain a conscious rational foot-hold on these distinctly different understandings. Each reveals a sincere grasp of fact and law which together form a sort of conscious coherence, but which consciously depend on distinct sets of assumptions about prudent interests and prudent outcomes.
Does this seem to imply that having the Constitution does not also mean having only one political society with only one set of laws and political norms? It would seem so. Prof Snyder has addressed this circumstance in essays that look at 'self-understanding' and ethical or value systems in the context of which social and political normative standards and institutional forms are legitimated.
My own sense of reasoned commitment is with the views that Prof Snyder presents, supported as these views are by William Baude and Michael Stokes Paulsen, "The Sweep and Force of Section Three," University of Pennsylvania Law Review, 14 August 2023 article on Sec 3 and by the historical events context to which Prof Snyder (and others, see "Trump v. Anderson: Writings on Section 3 of the Fourteenth Amendment" ) points that present both US domestic and other nation's experiences during the emergence of political movements and leaders that 'corrode' and undermine democratic constitutional systems. Especially relevant to me in RE the latter corrosive effects are:
"Brief of Experts on Democracy" (Ruth Ben-Ghiat, Sheri Berman, Larry Diamond, Rachel Kleinfeld, Steven Levitsky, Timothy Snyder), 30 January 2024;
"Brief of American Historians," 29 January 2024.
To these I would, again, point to Alan Guelzo's history, Fateful Lightning: A New History of the Civil War and Reconstruction (Oxford U Press, 2012).
14.3 is a prudent constitutional approach to an historically real threat to constitutional governance.
Trump's brand of political choice, which is corrosive to both the Constitution and rule of law, culminated in his choices to reject the Constitution in RE constitutionally legal electoral process and outcome and in RE promoting violent interference in the formal, constitutional legitimizing of the electoral process and outcome to enable orderly political transition. He brings 14.3 disqualification on himself.
In his “The Electoral Count Reform Act and Section 3”, Magliocca explains that two situations may combine to confuse the making of a ruling:
absence of comprehensive understanding by some Justices of the Supreme Court of the Electoral Count Reform Act of 2022 (“ECRA”);
and, consequences of the fact that "...ECRA did not create an independent cause of action".
Magliocca explains, "...the danger is that the Court may be unaware that there is even a problem because the details of the ECRA were not presented to them in any of the briefs" and "...In Trump, though, the Supreme Court may hold that states are barred from providing a cause of action to enforce Section Three. And there is no federal cause of action to enforce Section Three. This would mean that an “aggrieved” candidate could not invoke the ECRA judicial process for a Section Three claim and could only go to the Joint Session of Congress. The judicial review provision would be stymied, and chaos could result" and " there may be a meaningful difference for ECRA purposes between a holding in Trump that Congress must provide a cause of action to enforce Section Three against presidential candidates versus a holding that says that Congress need only authorize such Section Three enforcement".
The upshot, the event of "...a Trump victory in November will lead to a constitutional crisis culminating—ironically enough—in a challenge raised before the Joint Session of Congress that counts the electoral votes on January 6th,2025. The Electoral Count Reform Act of 2022 (“ECRA”) is national legislature that was supposed to prevent this kind of train wreck, but the interplay of the Act and the Court’s probable opinion in Trump may frustrate Congress’s intent".
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