Nelson, who served on the Montana Supreme Court from 1993 to 2013, is one of several Montanans who have weighed in with the brief at the high court. Former Montana Gov. Marc Racicot, a Republican, joined with other former GOP governors to urge the Supreme Court to reject Trump on the ballot. Meanwhile Sen. Steve Daines, as the head of the National Republican Senatorial Committee filed a brief in support of keeping Trump on the ballot as did Montana Attorney General Austin Knudsen, who joined with 16 other states attorneys general. Daines and Knudsen are also Republicans.
The 30-page brief, filed on Wednesday, said that states routinely interpret the United States Constitution to ensure federal candidates are eligible to run for office.
While Trump’s supporters have said that only Congress has the power to decide whether the former president is guilty of insurrection according to the 14th Amendment, the former justices, through their attorneys, argue that the Constitution does not mandate that Congress acts first before a state court declares a presidential candidate ineligible.
“Except where Congress grants federal courts exclusive jurisdiction, state courts must apply and enforce federal constitutional provisions when properly invoked under state law,” the brief said.
For example, the justices said that state courts are called upon to routinely interpret the due process and equal protection clauses, so states should be able to interpret the other clauses, like the insurrection clause.
“The Fourteenth Amendment constitutionalizes these protections precisely so they do not depend on the whims of Congress,” the brief said.
Instead, the former high court officials said that the Fourteenth Amendment allows Congress to remove disqualifications — for example, insurrection — and could do so in the case of Trump, but they said that would take two-thirds of both chambers of Congress.
“States cannot add to the constitutional qualifications for presidents, but this case does not involve an additional qualification — it involves a qualification from the Constitution itself,” they argue.
They also argue that different states have different requirements for electors who participate in the electoral college. Some states allow electors to be split. Other states require electors to be “bound” to a certain candidate, while others do not. The brief argues that this latitude has been historically permissible, and allows states power to determine how leaders, including the President, are chosen.
Other briefs filed with the U.S. Supreme Court have argued that the term “insurrection,” and what qualifies is vaguely defined, and too imprecise, which could lead to different courts making different determinations both now and in the future about what qualifies. However, the justices said that courts are the proper place to define those larger terms, and they’re called upon to interpret them routinely.
“Interpreting constitutional text and applying that text to (sometimes disputed) facts is precisely what courts do,” the brief said. “Like ‘due process’ and ‘equal protection’ the meanings of ‘engage’ and ‘insurrection’ are judicially discoverable. Indeed, the terms ‘insurrection’ and ‘engage’ are more clearly defined than terms like ‘due process’ and ‘equal protection.’”
The justices suggest that the Fourteenth Amendment allows Congress, by a two-thirds vote of both the House and the Senate, to remove a disqualification, but it has not done so. In their court filing, they said that Trump’s lawyers have turned the amendment on its head so as to mean Congress can only act after a person is elected to office.
“Until (Congress acts), he remains disqualified, and this court — bound by the Constitution’s plain text and original public meaning — cannot indulge such politics. Failing to enforce Section 3 out of fear Trump and his supporters’ reactions would prostrate the Constitution before a mob,” it said. “Conversely, allowing Trump to appear on ballots despite his disqualification would avoid neither nor further insurrection. It would convey that our Constitution does not apply to individuals who threaten it, precisely because they threaten it.”
Editor’s note: Nelson’s columns are regularly published by the Daily Montanan.
Other justices who were a part of this lawsuit
There were six other retired state Supreme Court justices. They are:
Paul H. Anderson (Associate Justice, Minnesota, 1994-2013)
Fernande Duffly (Associate Justice, Massachusetts, 2011-2016)
James Exum, Jr. (Associate Justice, North Carolina 1975-1986; Chief Justice 1986-1994)
Joseph Grodin (Associate Justice, California, 1982-1987)
Robert Orr (Associate Justice, North Carolina, 1995-2004)
Peggy Quince (Associate Justice, Florida Supreme Court 1999-2008 and 2010-2019; Chief Justice 2008-2010)
The 14th Amendment of the U.S. Constitution
Date passed: 1868
Source: Constitution.Congress.gov
Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section 2
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
Section 3
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.
Section 4
The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
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