[Ed.: For this guest post we welcome Jaden M. Lessnick, a 2023 graduate of the University of Chicago Law School, and & T. Hunter Mason, a 2023 graduate of Yale Law School. They are both clerking for a judge on the federal court of appeals. All views and errors are their own.]
In the wake of the Colorado Supreme Court’s momentous decision to remove former-President Trump from the state’s primary ballot, commentators have focused on two primary questions: What happened (did Trump engage in insurrection on January 6, 2021)? And if so, what are the consequences (is Trump disqualified from seeking the presidency)? Much attention has rightly been trained on Professors William Baude and Michael Paulsen’s primary contentions about Section Three of the Fourteenth Amendment, including whether the provision is self-executing, whether the President is an “officer,” and the like. Controversial as those questions may be, we comment on another issue of no lesser consequence: the appropriate evidentiary standard required to disqualify a candidate for election under Section Three. How sure must we be about what happened on January 6 to disqualify Trump from holding office?
The relevant Colorado election code provides, “The party filing the challenge has the burden of to sustain the challenge by a preponderance of the evidence.” The Colorado state district court nevertheless concluded that the petitioners “met the higher standard of clear and convincing evidence.” The Colorado Supreme Court ultimately held, inter alia, that the proceedings set forth by Colorado law do not violate the Fourteenth Amendment’s Due Process Clause, but the majority did not address the evidentiary standard in so holding. The dissent, in contrast, suggested that “an expedited hearing absent any discovery procedures and with a preponderance-of-the-evidence standard is not the appropriate means for adjudicating a matter of this magnitude.”
We thus make two brief points. First, we posit that the Constitution confers on otherwise-qualified individuals the political right to seek election. Second, we suggest that clear and convincing evidence is necessary to abridge that interest under Section Three. (We assume for the sake of this piece that disqualification does not presuppose a prior conviction for insurrection- or rebellion-related offenses.) We take these in turn.
The Right to Hold Office and Due Process
In his dissenting opinion, Justice Carlos Samour castigated the Colorado Supreme Court’s majority for “depriv[ing] someone of the right to hold public office without due process of law.” “Section Three,” he observed, “does not spell out the procedures that must be followed to determine whether someone has engaged in insurrection after taking the prerequisite oath.” He continued by arguing that such specification is for Congress to carry out pursuant to the power granted in Section Five of the Fourteenth Amendment.
Reasonable—indeed, brilliant—minds have disagreed on the merits of Section Three’s self-execution and the legitimate fountain of executory authority. But Justice Samour’s point poses an interesting question even if the section’s disqualification is self-executing. Because we cannot expect persons desirous to run for federal office to evaluate objectively their qualification under Section Three (and other constitutional provisions), there must be some public forum in which challenges to their qualifications may be adjudicated. Professors Baude and Paulsen describe the plurality of potential fora where the question of Section Three disqualification might be considered. In many instances, a decision by state election officials will eventually arrive before a court for review. Justice Samour’s question then takes on special relevance: If an individual indeed has “the right to hold public office,” what must the adjudicatory process for removing that right look like? The permutations of possible procedural forms are legion. Should the trial be before a jury or will a bench trial suffice? What are the applicable standards of review, burdens of proof, and evidentiary rules? And if Congress need not stipulate which among the many options is appropriate, how are the adjudicators to decide? More importantly, are there any constraints on their choosing? We take for ourselves only the standard-of-proof question and leave for inevitable future debate the remainder of these consequential issues.
But prior to the multitude of procedural questions, there arises the inquiry as to whether there is any right to run for or hold office to which procedural protections ought to attach. Without such a right, disqualification would pose no constitutional defect, either procedurally or substantively. The Constitution’s primary procedural bulwark against deprivation of individual rights by the states is the Due Process Clause of the Fourteenth Amendment. As the Supreme Court has explained, the Clause “imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests[.]” Yet scholars dispute whether the right to hold office is one such liberty or property interest covered by the clause. Professors Baude and Paulsen, for example, note that “it is far from clear” that public office is the sort of “private vested right[]” protected by procedural due process.
Yet we believe that the Constitution implicitly confers a political right to hold office on all those who are qualified by the instrument’s terms, and that right—regardless of whether it qualifies as “liberty” or “property” under the Due Process Clause—demands some procedural safeguards. In Prigg v. Pennsylvania, the Supreme Court proclaimed that “[if] . . . the Constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced, in cases where it did not execute itself, it is plain that it would have been, in a great variety of cases, a delusive and empty annunciation.” That principle, though announced in a case infamous for the right at issue (the right to recapture fugitives from slavery), was founded on sound constitutional reasoning. (The Court arguably misapplied that principle in the factual context of Prigg, but that does not impeach the general maxim that constitutional rights are to be protected from public curtailment by some process.) Justice Joseph Story wrote in Prigg that the same absurdity of vacuous promises might not arise where a constitutional provision is self-executing. But even where rights-granting provisions are self-executing, individuals need some means of asserting their rights against the public. And so, where the Constitution recognizes a right, it also begs some minimum process for rights claimants to vindicate that right.
So, does the Constitution recognize a right to hold public office upon election? We think it does, though not in so many words. Article II, Section 1 declares that “[n]o person . . . shall be eligible to the Office of President” unless they meet requirements of citizenship, age, and residency. The necessary implication is that anyone meeting those requirements—and not otherwise disqualified under separate provisions—is eligible. Article VI likewise confirms the accessibility of office to anyone qualified and duly elected by forbidding the use of religious tests to limit candidate eligibility. There was also debate at the Philadelphia Convention about the desirability of providing salaries for elected officials; the main object in view of the proponents of robust salaries was to enable the election of sharp minds who lacked independent wealth. The Supreme Court has acknowledged “the right of being chosen” to fill public office in the seminal case Powell v. McCormack. In the same case, the Court discussed the converse right of the people “to be represented by men of their own choice.” From these considerations, we conclude—uncontroversially, in our view—that the Constitution recognizes a right to hold office. Whether granted under the Due Process Clause or the Constitution as a whole, that right begs protection from unlawful curtailment. In the inevitable proceedings to vindicate the right, there must be some determination of what process is due to the claimant.
Our federal electoral system virtually assures that an assertion of the right to hold office by an ostensibly unqualified candidate will give rise to proceedings where the candidate’s right is challenged and defended. Although many people potentially possess the right, the Constitution contemplates that each would-be candidate’s qualifications be proven before the right can be exercised. States create the procedures by which a hopeful official may initiate his or her candidacy. In Colorado, as in many states, the process begins with the candidate’s certification that he or she is indeed qualified under the Constitution to run for the desired office. Having asserted the right to hold office, the claimant then faces potential challenges to the self-certification of his or her own qualification. Challengers to presidential candidates might contest the candidate’s age or citizenship, or, as in the Colorado case, whether a candidate engaged in insurrection such that he or she is disqualified under Section Three. Donald Trump met his initial burden to claim the right to hold the President’s office by certifying his eligibility for the same. The electors disagreed, and so they brought suit in state court to adjudicate Trump’s qualifications. That adjudication proceeded under state-created procedures with a state-imposed burden of proof. But for a right conferred by the federal Constitution, is there any federal rule as to the burden of proof that challengers must carry in disproving a candidate’s qualifications? It is to this question we now turn.
Standard of Proof
The decision over the appropriate standard of proof “is more than an empty semantic exercise.” As the Supreme Court put it in Santosky v. Kramer, “the minimum standard of proof tolerated by the due process requirement reflects not only the weight of the private and public interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants.” The requisite standard of proof in any proceeding embodies our societal attitudes about the interests at stake—often vis-à-vis the Constitution. The Constitution does not designate a standard of proof for any sort of legal proceeding, but courts have annexed to procedural guarantees set forth in the text policy considerations that animated historical use of specific standards in given contexts. Thus, standards of proof in many instances have been constitutionalized as requisites of due process or other constitutional provisions, such as the amount-in-controversy requirement in diversity proceedings.
The three primary standards of proof are familiar. Civil disputes over monetary damages usually proceed under a preponderance standard given “society’s ‘minimal concern with the outcome,’ and a conclusion that the litigants should ‘share the risk of error in roughly equal fashion.’” The Court uses the intermediate clear-and-convincing-evidence standard when “[t]he interests at stake . . . [are] more substantial than the mere loss of money,” such as in proceedings involving the termination of parental rights or civil detention. And of course, given the fundamental liberty interests at stake in a criminal proceeding, “our society imposes almost the entire risk of error upon itself” by using the beyond-a-reasonable-doubt standard.
We think the clear-and-convincing-evidence standard appropriate in disqualification proceedings. The political interests involved—both private and public—are far greater than mere monetary interests in which society has minimal concern. Beyond the right to seek office described above, disqualification implicates people’s ability to vote for their preferred political candidate. Of course, there is not an unqualified right to vote for just anyone. As we have noted, the Constitution limits the class of people eligible to be President by imposing age, citizenship, and residency requirements. The Constitution also, on Baude and Paulsen’s view, contains a self-executing “no insurrection” requirement. But to enforce that requirement (like any of the others) necessarily involves factfinding, and factfinding necessarily involves the risk of error. The decision to impose a disability based on events about which reasonable minds could disagree affects political interests at the very core of constitutional system. If the standard of proof “indicate[s] the relative importance attached to the ultimate decision,” it is hard to imagine a more worthy candidate for an elevated evidentiary standard than electoral eligibility.
Beyond the usual risks of error inherent in any factfinding mission, we can imagine other ways in which error might arise in the disqualification decision. For one, election cases often proceed on a compressed timeline. Consider the Colorado case. The petitioners filed their claim on September 6, 2023; the state supreme court issued its decision just three months later. The discovery processes in Trump’s criminal proceedings, however, have not yet been completed, and there may be additional evidence—inculpatory or exculpatory—that comes to light. Factual errors are more likely when the adversarial process is temporally truncated. Second, more than in most cases, decisionmakers in disqualification proceedings may have subconscious political biases. Error is more likely when the facts may be understood through political lenses, even if the factfinder makes a good-faith effort to assess the facts objectively. January 6 is a prime example; many observers have vastly different views about the event despite being presented with the same evidence. That potential for subjective, subconscious bias is especially likely when dealing with areas of the law that require some sort of historical exegesis. Recent memory (before 2021) is devoid of well-known instances of insurrection or rebellion. Adjudicating and applying the meaning of insurrection as used in Section Three therefore requires at least some investigation of the historical use of that term.
We are sensitive to the countervailing interests at play. There is an undeniable political and moral valence to disqualification; our democracy would undoubtedly suffer in myriad ways were an insurrectionist elected President. But even if a factfinder concluded that a candidate had not engaged in insurrection, members of the electorate might choose not to vote for that candidate based on their personal beliefs about the candidate’s involvement in insurrection. If Trump is acquitted in his election-related trials, we would still expect a considerable subset of the population not to vote for Trump based in part on people’s belief that Trump did in fact engage in insurrection. Put another way, the political process mitigates the consequence of an erroneous decision not to disqualify a candidate, thus militating in favor of a heightened evidentiary standard.
At the same time, the beyond-a-reasonable-doubt standard, which courts “hesitate[s] to apply . . . in noncriminal cases,” is perhaps too stringent. First, a judgment of disqualification is not necessarily permanent. Section Three provides for the removal of the disability upon two-thirds vote of each house of Congress. The lack of permanency is not itself dispositive, as criminal convictions, for instance, are impermanent insofar as appellate and collateral relief can address erroneous outcomes. But “permanency of the threatened loss” is at least a relevant consideration. Second, a beyond-a-reasonable-doubt standard may suffer from the same political shortcomings as the preponderance standard. Even subconscious political biases may render the beyond-a-reasonable-doubt standard all but insuperable, even if the factfinders approach the disqualification inquiry in good faith. Such an onerous standard would go too far in the other direction, risking the public weal by virtually ensuring that the disqualification for insurrectionist behavior never attaches.
It is worth repeating that we find ourselves in uncharted waters, and no cases or principles of constitutional interpretation provide an unassailable answer to the question before us. “There are no hard-and-fast standards governing the allocation of the burden of proof in every situation. The issue, rather, ‘is merely a question of policy and fairness based on experience in the different situations.’” We think that the interests at stake in the disqualification inquiry are too great to be protected only by a preponderance-of-the-evidence standard. A clear-and-convincing-evidence threshold appropriately minimizes the risk of erroneous disqualification while ensuring that Section Three has practical bite.
Conclusion
Our observation here may seem inconsequential in light of the Colorado trial court’s view that the clear-and-convincing-evidence standard was met in Trump’s case. Yet Colorado’s decision to impose the minimal preponderance-of-the-evidence standard for proving disqualification from office underscores the consequence of this question. If states can decide the burden of proof needed to deprive an individual of a federal political right, we risk a disuniform approach that could determine national elections. If a presidential candidate is disqualified in battleground states because a lower standard of proof is required for challengers to disprove his or her eligibility, he or she may lose the entire election based solely on the procedural choice of one or a few states. The ability of one or a few states to determine the outcome of national elections is fundamentally inconsistent with the goal of nationwide representation embodied in the President’s office.
True, the Constitution commits much discretion to the states in regulating even federal elections and the federal right to vote therein. States can determine who votes for federal officials within their territory by imposing residency and identification requirements. They also impose disqualifications of their own on the voting rights of felons. The disqualification of felons already has a federal standard of proof attached by virtue of the criminal nature of the proceeding that results in their disqualification. And perhaps there should be a federal standard of proof for state-created residency requirements and the like when those requirements impinge on the fundamental federal right to vote. But quite apart from these points, state-specific restrictions do not create disparate standards for determining a single individual’s political right as does state imposition of disparate standards of proof for eligibility to a national office. We believe that uniformity in that determination is requisite for a full and fair election.
Discussion of Section Three disqualification has ignited a firestorm in anticipation of the 2024 presidential election—as well it should. The ideas sown by Professor Baude, Paulsen, and others have now borne fruit in Colorado and may yet affect Trump’s candidacy for the high office in other states. We hold no sympathy for those who have engaged in insurrection, and we applaud the instinct, constitutionalized in Section Three, that such individuals should not be eligible for the public trust of office-holding. Herein we have merely attempted to engage with a serious procedural question raised by the Colorado Supreme Court’s decision. Even insurrectionists are due process by which deprivation of their rights is constitutionally justified. In these divisive times, we think it would be prudent to assure ourselves and our political rivals that when we decide questions of such monumental importance as the qualifications of the candidates for President, we are doing so on clear and convincing grounds.
Posted at 6:06 AM