Ex-Montana Supreme Court justice joins top judges in support of keeping Trump off ballot

Another notable Montana leader has joined a group of retired state Supreme Court justices throughout the country to urge the United States Supreme Court to uphold the decision by the Colorado Supreme Court to disallow former President Donald J. Trump from appearing as a presidential candidate on the 2024 ballot.

Retired Montana Supreme Court Justice James C. Nelson has joined with six other retired justices in an amicus curiaeor “friend of the court” brief, saying that state courts have been determining eligibility of candidates since America was founded, and that the court in Colorado was merely exercising its proper role.

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.

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