The Supreme Court’s decision to allow Donald Trump to remain on the Colorado ballot shapes the way states can challenge federal candidates under constitutional rule.
Surprising as it may seem, the Supreme Court’s recent decision on the power of states to enforce Section 3 of the 14th Amendment against federal candidates for office or elected officials has particular bearing on the political questions tied to the finalization of the Equal Rights Amendment (ERA).
Beyond its impact on the 2024 presidential election, the Supreme Court’s decision in Trump v. Anderson informs questions about constitutional interpretation and the amendment process as another instance of Congress’ principal authority in national democratic decision-making.
The Supreme Court’s holding that Colorado cannot exclude Trump from its primary ballot centers goes to the heart of U.S. democracy and holds particular significance for the representative processes defined in the Constitution, including the constitutional amendment process under Article 5.
This explainer describes how Trump v. Anderson sheds light on the process to finalize the ERA as the 28th Amendment to the U.S. Constitution. Importantly, the Supreme Court has affirmed that political issues pertaining to the entirety of the U.S. must be decided by a democratic body responsive to the nation: Congress.
What procedural roadblocks prevent finalization of the ERA?
The ERA would add explicit sex equality protections to the U.S. Constitution. First proposed in Congress over 100 years ago, the ERA has satisfied all the legal requirements to be added to the Constitution as the 28th Amendment, as set out in Article 5 of the Constitution.
Nevertheless, there are widespread political concerns about whether the ERA has been fully ratified. Finalization of the ERA has stalled over procedural issues—including the meaning and impact of a time limit for ratification by the states that Congress placed in the preamble to the ERA. That time limit expired in 1982, but there is disagreement about what that means for the last three states to finally ratify the Amendment after the time limit had expired, in 2017, 2018, and 2020. This congressionally-imposed timeline has left unresolved questions about the validity and legal effect of the time limit, which is not required by the Constitution; the significance of state ratifications after the expiration of the time limit; and Congress’ power to extend and/or remove the time limit retroactively.
Second, five state legislatures have voted to rescind their prior ratifications of the ERA. Article 5 is silent as to both time limits on ratification and the authority of states to withdraw prior ratifications.
Answers to these questions can be found in both the history of other amendments to the Constitution and in the democratic structure of the Constitution and Article 5 in particular.
What is Trump v. Anderson about?
In September 2023, a group of Colorado voters eligible to vote in the state’s Republican presidential primary election filed suit to prevent Donald Trump from running for presidential reelection in 2024, on the grounds that he had engaged in insurrection and was barred from public office under Section 3 of the 14th Amendment. Section 3 originated in the Reconstruction era post-Civil War to help preserve the Union and prevent Confederate soldiers from returning to power.
Because Trump engaged in insurrection on Jan. 6, 2021, the lawsuit argued, he is barred from inclusion on Colorado’s primary ballot.
The Colorado Supreme Court affirmed the lower court’s findings of insurrection and reversed the lower court’s decision that Section 3 did not apply to Trump, reasoning that the presidency is not an office of the U.S. defined under Section 3. The Colorado Supreme Court ordered Colorado’s secretary of state to remove Trump from the 2024 ballot and not count any write-in votes for him.
The Supreme Court granted Trump’s petition for review on Jan. 5, 2024, and, two months later, issued an opinion overturning the Colorado Supreme Court decision.
What is the Court’s holding in Trump v. Anderson?
In a per curiam decision, issued in the name of the Court and not an individual member of the Court, the Supreme Court held that the Colorado Supreme Court erred by excluding Trump from the 2024 presidential primary ballot. Turning to the text of Sections 3 and 5 of the 14th Amendment, the Supreme Court interpreted both sections to grant Congress the authority to enforce Section 3 and not the states.
More generally, the Court looked to the 14th Amendment’s limits on the powers of the states through the Equal Protection Clause and the Due Process Clause to reason that states cannot enforce Section 3 against federal office holders within the balance of the separation of powers between the federal and state governments. Allowing Colorado to enforce Section 3 by removing Trump from the ballot would give the state too much power over the rest of the country because “[i]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest” which would result in a “patchwork” of “[c]onflicting state outcomes” that affects the election as a whole.
Why is Trump v. Anderson relevant to finalization of the Equal Rights Amendment as the 28th Amendment to the Constitution?
Like the presidential election, the project of constitutional amendments is a “uniquely important national interest” and among the most fundamental forms of democratic self-governance. Article 5 of the Constitution grants exclusive authority for proposing and ratifying amendments to the political process: in Congress, state legislatures, and/or constitutional conventions.
Article 5 provides no role for either the executive or judicial branches.
It is primarily, if not exclusively, within the authority of Congress to resolve disputes about the constitutional amendment process.
In Trump v. Anderson, the Supreme Court assigns to Congress the responsibility to enforce Section 3 of the 14th Amendment based on authority explicitly granted in constitutional text. As a strong parallel to the Court’s deference to Congress in Trump v. Anderson, Article 5 can and should be interpreted to grant Congress exclusive authority to resolve issues related to the constitutional amendment process.
In Trump v. Anderson, the Supreme Court applied the text of Sections 3 and 5 of the 14th Amendment to conclude that the Constitution gives Congress clear authority to enforce Sections 3 against federal elected officials and candidates. This reasoning, based on interpretation of constitutional text, applies with equal force to Article 5, thus reinforcing what the Department of Justice’s Office of Legal Counsel and others have maintained: It is primarily, if not exclusively, within the authority of Congress to resolve disputes about the constitutional amendment process.
Similarly, the attempts by five states to rescind their prior ratifications of the ERA should be treated as a political question to be resolved by Congress. There is historical precedent for this position: New Jersey and Ohio voted to ratify the 14th Amendment and then voted a second time to rescind their prior ratifications. Nevertheless, Congress responded by passing a resolution declaring the 14th Amendment fully ratified and listed New Jersey and Ohio as two of the ratifying states. This precedent supports the conclusion that Congress has the power to recognize or reject state legislative rescissions of earlier ratifications of a proposed amendment as part of Congress’s political power under Article 5.
The Court’s ruling in Trump v. Anderson teaches us that when constitutional disputes arise in connection with “We the People” engaging in fundamentally important forms of democratic self-governance—such as electing a president and amending the constitution—Congress has the power and duty to implement a national political solution to those problems.
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