Chaos or Federalism: Section 3 Enforcement in Illinois
November 4, 2024
By: Matthias Connelly
Before the Supreme Court heard oral arguments in Trump v. Anderson, commentators worried about the political implications of deciding whether Section 3 of the Fourteenth Amendment disqualified former President Trump from holding office for his having engaged in insurrection within the Section’s meaning. After oral argument, it was apparent where the Justices had coalesced in their decision-making: what sort of electoral chaos would different disqualification decisions by different states relating to different candidates produce?
The Court decided that Section 3 of the Fourteenth Amendment is not self-executing, i.e. it does not empower states to unilaterally disqualify federal officeholders or candidates. In so doing, it reversed the Colorado Supreme Court, which had barred Trump from its state’s ballots after finding that Trump’s participation in the January 6th attack constituted insurrection. The decision also nullified an Illinois trial court ruling holding the same.
A closer look at the procedural posture of the Illinois case illustrates some of the main counter-arguments to the Court’s reasoning, namely that it “overrated the risks of divergent state judgments, while completely ignoring those of misguided uniformity.” In other words, haphazard enforcement of the Constitution, subject to federal judicial review, is more preferable than none at all.
To be sure, the Illinois case mirrored the outcome of Colorado’s in banning Trump from appearing on primary ballots, but it reached its decision by different procedural means. For one, unlike the Colorado action which originated in state court, objectors first petitioned the Illinois State Board of Elections, alleging the invalidity of Trump’s statement of candidacy in light of his purported disqualification under Section 3. The board, compiled of four Democrats and four Republicans, informed by an unexpected recommendation from its General Counsel, found that the objectors did not meet their burden of proof, and in the alternative dismissed the challenge for want of jurisdiction to conduct the requisite “complicated” constitutional analysis.
“It was a shocking decision from the electoral board,” said Caryn Lederer, the lead attorney behind the Illinois ballot challenge. “The board hears complex cases and evaluates constitutional questions over and over again through election cycles.”
For example, in 2010 the board heard a challenge to then-mayoral candidate Rahm Emmanuel’s eligibility for office. At issue was Emmanuel’s residency status and whether he demonstrated an intent to abandon his Illinois residency during his two-year service as Chief of Staff in the Obama administration. Ultimately, after a days-long evidentiary hearing, the board unanimously voted that Emmanuel met the residency requirement.
But proving intent can be a notoriously fact-intensive exercise, as Emmanuel’s residency hearing demonstrated. In other words, some qualification determinations are complicated.
“Part of the problem here is the way that the standard was articulated, which was basically, ‘Because it’s too complicated, the electoral board doesn’t have authority to decide it,’” Lederer said. But, “you either have statutory authority to hear a category of ballot challenges or you don’t. Factual analysis or constitutional analysis can be complicated across different types of ballot questions. Jurisdiction based on complexity invites confusion.”
The factual findings before the board included the January 6 Report as well as the Colorado Supreme Court’s decision, making the record arguably less complicated than in Rahm Emmanuel’s case. “Every single reviewing court that actually looked at the merits very easily found that Trump engaged in insurrection,” said Lederer.
This includes the Illinois circuit court that heard the case following the objectors’ appeal. There the court took judicial notice of the Colorado Supreme Court’s persuasive authority on the matter and noted that the Colorado district court had found by “clear and convincing” evidence that Trump had engaged in insurrection. This standard was higher than the electoral board’s “preponderance of the relevant and admissible evidence” standard. Despite the electoral board’s refusal to make any factual findings regarding January 6, 2021, the court held that the objectors nonetheless met their burden based off of the incorporated factual findings made by both the Board’s Hearing Officer and the Colorado Supreme Court. Finally, finding the Colorado Supreme Court’s analysis of Section 3 in relation to Trump “compelling,” the court determined that Section 3 disqualified Trump and reversed the Board of Elections.
The effect of the court’s ruling meant Trump “falsely swore” on his statement of candidacy that he was “legally qualified” for the presidency. Unless reversed on appeal, Trump would have been stricken from primary ballots in Illinois.
Until foreclosed by the Supreme Court’s decision in Trump v. Anderson, judicial review in Illinois and elsewhere could have continued to unfold, with federal courts acting as a backstop. Instead, the Supreme Court determined that Section 3 exclusively requires implementation legislation from Congress insofar as federal candidates are concerned. (States may apply Section 3 to state office seekers.)
Fearful of the “chaos” of state-by-state Section 3 enforcement, the Supreme Court invoked federalism to condemn the disuniformity that federalism features. In so doing, the Court elevated fears unsubstantiated by the record before it and diminished the risks of a uniformly gutted Constitutional provision meant to protect democracy by democracy-limiting means.
Hidden in plain sight was the process working by design. Article II confers to “each state” the power to determine how it selects its electors, and here Illinois (and Colorado) were doing just that. Whether the decisions by the Illinois state board or circuit court evinced an overtly partisan valence feared by the Supreme Court, the process of judicial review is perfectly capable of resolving.
“The entire system of judicial review is set up exactly for situations like this,” said Lederer. “Different jurisdictions reach different conclusions about issues of constitutional interpretation, and they filter up to the Supreme Court. And that is exactly the process that could have been followed here.”
Time will tell whether no enforcement is better than chaotic enforcement.