After former president and current GOP presidential front-runner Donald Trump’s disqualification from the ballots in Colorado and Maine for engaging in insurrection on Jan. 6, it didn’t take long for Republicans to respond with retributive calls to do the same to President Joe Biden, among other Democrats.
“If Democrat states are saying we’re not going to let these Republicans run, you bet you’re going to see the same thing happening from Republican states. And it’s not good,” Missouri Secretary of State Jay Ashcroft, a Republican, told NBC on Jan. 5.
“Seeing what happened in Colorado tonight … makes me think — except we believe in democracy in Texas — maybe we should take Joe Biden off the ballot in Texas for allowing 8 million people to cross the border since he’s been president,” Texas Lt. Gov. Dan Patrick, a Republican, suggested in December.
The Supreme Court is set to hear arguments on Feb. 8 on Trump’s disqualification from the Colorado ballot by the state’s Supreme Court under Section 3 of the 14th Amendment. That constitutional provision bars anyone who engaged in “insurrection or rebellion” from holding an office under the United States, and was originally adopted in the aftermath of the Civil War. At least six of the briefs filed with the Supreme Court in support of Trump, including one submitted by the Republican National Committee and another by 179 GOP members of Congress, feature similar warnings of retribution.
These briefs argue that the Colorado Supreme Court adopted overly broad definitions of “insurrection” and “engage in” that could be applied to Biden, Vice President Kamala Harris and numerous Democratic members of Congress in a retributive fashion.
Many of them highlight Democratic politicians’ involvement in causes that are already unpopular with conservatives. Biden and Harris could be disqualified because they “advocated for, marched with, and provided material support to rioters in the wake of George Floyd’s death in 2020,” the RNC’s brief claims, referencing the 2020 reemergence of the Black Lives Matter movement. Rep. Rashida Tlaib (D-Mich.) could face disqualification for speaking at a demonstration advocating for a cease-fire in Gaza before pro-cease-fire Jewish protesters staged a sit-down protest in a Senate office building. Rep. Jamaal Bowman (D-N.Y.) could be disqualified for pulling a fire alarm during congressional votes, another brief claims. Even Michigan Gov. Gretchen Whitmer could be disqualified for allowing pro-union protesters to enter the Michigan Capitol building in 2012, according to yet another brief.
These examples are presented in an effort to prove that Trump’s disqualification from state ballots under Section 3 of the 14th Amendment “would cause anarchy” by “open[ing] the floodgates to tit-for-tat challenges.”
“To be blunt, ‘blue states’ will apply Section 3 to harass ‘red’ candidates, while ‘red states’ will apply that provision to harass ‘blue’ candidates,” according to a brief filed by Judicial Watch, a conservative legal group that backed Trump’s effort to steal the 2020 election.
Aside from posing effectively as threats for retributive action should the court side against Trump, these examples all have one big problem: none of the activity they identify would qualify as an insurrection leading to Section 3 disqualification under the Colorado Supreme Court’s definitions of insurrection or engaging in insurrection. But that’s also kind of the point.
First: What’s An Insurrection?
This whole argument about retribution depends on the definition of insurrection. Since Section 3 of the 14th Amendment doesn’t define insurrection or rebellion — a common problem with constitutional provisions — the question at hand is how to define it.
The Colorado Supreme Court’s decision disqualifying Trump relied on the prior decision by a state district court judge that kept Trump on the ballot but found that he nonetheless engaged in insurrection.
An “insurrection” is “a public use of force or threat of force … by a group of people … to hinder or prevent execution of the Constitution of the United States,” according to the Colorado district court. The court’s definition notes that Section 3’s statement that insurrection or rebellion must be against the Constitution of the United States “limits the scope of the provision by excluding insurrections against state or local law.”
In endorsing the district court’s decision, the Colorado Supreme Court stated that it did not find it necessary to “adopt a single, all-encompassing definition of the word ‘insurrection.’”
“Rather, it suffices for us to conclude that any definition of ‘insurrection’ for purposes of Section Three would encompass a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country,” the decision states.
The threats of retributive action by Republicans under Section 3 all claim that this definition could encompass various actions taken by Democrats leading to disqualification challenges. But that does not add up.
Take the most heavily cited example by Republicans to claim that they could disqualify a Democrat under Section 3: the protests and riots that followed the police murder of George Floyd in May 2020.
Around 20 million people participated in the protests in the U.S. after Floyd’s murder. A much smaller group of people engaged in violence against persons or property causing over $1 billion in property damage and leading to at least 19 deaths. Over 14,000 people were arrested, although arrests were for extremely minor offenses. A large portion of the property damage and violence occurred in Minneapolis-St. Paul, where Floyd was killed.
Did the totality of the damage caused by the people who engaged in rioting and looting constitute insurrection under Colorado’s definition? This claim requires showing that a “group of people” used “force” or the “threat of force” in order to “hinder or prevent the execution of the Constitution of the United States.” It would be very hard to say that that is what rioters or looters were doing.
Those engaged in looting were not acting upon a public purpose aimed against the Constitution. They engaged in a private purpose for private ends, like stealing items for themselves. This isn’t an effort to attack the Constitution, it’s petty crime on a mass scale.
In other cases, attacks on police stations, like the burning of the Minneapolis 3rd Precinct police station, may be major crimes. But they aren’t efforts to “hinder or prevent the execution of the Constitution.” If anything, they could be classified as efforts to hinder the execution of state law, but that is exempt under Colorado’s definition.
Defining ‘Engage In’
For a politician to be disqualified under Section 3, they would also need to be engaged in the insurrection itself. Biden, Harris, all elected Democrats and some elected Republicans stated support for the 2020 Black Lives Matter protests, sometimes, as in the case of Rep. Maxine Waters (D-Calif.), with heated rhetoric. Harris also tweeted a fundraising link for a Minneapolis bail fund. Not only are these actions not connected to an insurrection as defined by Colorado, but they also are not acts that could be classified as engaging in insurrection under Colorado’s definition.
For its definition of “engage,” the Colorado Supreme Court again looked to the district court’s decision. There the judge relied on statements made by Attorney General Henry Stanbery, who served from 1866-1868, when the 14th Amendment was up for ratification by the states.
“[A]n act to fix upon a person the offence of engaging in rebellion under this law, must be an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose,” Stanbery said in a statement in 1867.
Those who made “disloyal sentiments, opinions, or sympathies” toward those engaged in insurrection would not face disqualification, Stanbery said. Instead, the offending person must, “by speech or by writing,” have “incited others to engage in rebellion” to be disqualified.
As the district court and Colorado Supreme Court found, this applies to Trump. He chose to lie about the election results and foment a plan to steal it and stay in office. He invited his supporters to a “wild” rally on the National Mall, paid for by his campaign, the day the Constitution ordered for the opening of the electoral votes. He did so with the full knowledge of the violent proclivities of some of those supporters. When his plot to have Vice President Mike Pence reject certain electoral votes fizzled, he told his supporters to “fight like hell” and march on the Capitol. And when he was asked to call off his supporters by then-House Minority Leader Kevin McCarthy (R-Calif.), he said, “Well, Kevin, I guess these people are more upset about the election than you are.”
Trump and the insurrectionists shared the same public purpose: to derail or delay the constitutionally mandated transfer of power on Jan. 6. He invited and incited them to help him carry out their united purpose. That purpose involved an attempt to hinder an explicit provision of the Constitution. And they used violence and the threat of violence to do so.
None of the examples bandied about as potentially disqualifying acts for Democrats come close to meeting the full definitions for “insurrection” and “engage in” put forward by the Colorado courts.
Perhaps, one could argue a case for disqualification if some elected Democrat had called on protesters to attack the courthouse in downtown Portland that faced a siege for weeks in the summer of 2020. But that didn’t happen. Instead, allies of those protesters burned down the local Democratic Party office after Biden’s inauguration. This is not exactly a group that had joint goals together with leaders of the Democratic Party.
But the ultimate point that Republicans make with these specious examples is still one that’s worth considering. They are promising to engage in a “tit-for-tat,” no matter the factual accuracy of their allegations. This would create a new realm of lawfare where partisan activists are constantly fighting to get their partisan opponents disqualified from the ballot whether they meet the definition of insurrection.
It’s not as though Republicans are beyond seeking retribution rooted entirely in fantasy. House Republicans are right now engaged in an impeachment inquiry into Biden with no evidence of any wrongdoing purely as an act of revenge for Trump’s two impeachments, one for attempting to use congressionally mandated appropriations to blackmail a foreign country into opening an investigation into his political opponent and one for trying to steal the 2020 election by inciting an insurrection.
The Supreme Court may claim that it does not base its decisions on political concerns like these, but it’s hard to see how these threats of retribution in briefs filed by Trump’s supporters don’t color their thinking.