Derek T. Muller is a professor of law at the University of Notre Dame Law School. As a nationally recognized election law scholar, Muller recently filed an amicus brief in support of neither party in Trump v. Anderson. The United States Supreme Court will hear oral arguments on Feb. 8 in the case that will determine whether the Colorado Supreme Court erred in its order to exclude former president Donald Trump from the 2024 presidential primary ballot. We spoke with Muller about the case and about his brief, found here.

What is Trump v. Anderson about?

A group of Colorado voters sued in state court to exclude former president Donald Trump from the Republican presidential primary ballot. They argued that Trump is barred from serving as president under Section 3 of the Fourteenth Amendment. The Colorado Supreme Court agreed with the voters and concluded that Trump was not qualified to serve as president.

What is Section 3 of the Fourteenth Amendment?

After the Civil War, the United States enacted three amendments to the United States Constitution. Among other things, those amendments famously abolished slavery and guaranteed that the right to vote could not be abridged on the basis of race. Other provisions have received less attention.

Section 3 of the Fourteenth Amendment prohibits those who previously took an oath to support the Constitution from serving in federal or state office if they engaged in insurrection against the United States. It was designed to exclude former government officials who supported the Confederacy during the Civil War from returning to government. The bar to service can be lifted by Congress if it so chooses. While the provision was routinely used in the years immediately following the Civil War, it has seen relatively little use since then.

What happened in the Colorado litigation?

A trial court held a five-day hearing, which included some witnesses who testified and some argument from attorneys. It concluded that Trump had engaged in insurrection for his speech and conduct before and during the riots on Jan. 6, 2021, at the United States Capitol during the counting of electoral votes. But it also concluded that he was not covered by the text of Section 3, because while Section 3 barred people from holding certain offices, the office of the president was not one of those covered by the text of Section 3.

On appeal to the Colorado Supreme Court, the court, by a divided 4-3 vote, concluded that Trump engaged in insurrection and that the office of the president was covered by Section 3. Therefore, Trump should not appear on the ballot in the Colorado primary. But the court paused its ruling while Trump appealed, so Trump’s name will in fact appear on the Colorado ballot. The dissenting justices in Colorado contested whether a state court had power under state law to hear this kind of claim, and they disputed whether Congress needed to pass a law enforcing Section 3 rather than leaving it to states to decide enforcement of it on their own.

What is Trump arguing in his appeal and what happens if he wins?

Trump has raised five primary issues in his brief. The bulk of his argument focuses on the precise language of Section 3 to suggest that the amendment does not apply to the presidency in the first place, something the trial court in Colorado agreed with. The section opens, “No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States ….” Trump argues that the exclusion of the presidency from this list means that it does not apply to presidential candidates. He bolsters this argument by arguing that the phrase “office … under the United States” is a term of art that refers to officials appointed to positions in the executive branch, not to the president himself.

Second, Trump argues he did not “engage in insurrection” under the meaning of Section 3. Third, he argues that the states and courts should defer to Congress and look to see how it has enforced Section 3 rather than devising mechanisms to implement it on their own without congressional guidance. Fourth, he claims that Section 3 applies only to those holding office, and it cannot be used to bar candidates seeking office. And finally, Trump argues that Colorado so egregiously misinterpreted state law that it violated the federal constitution.

If Trump wins on any one of these arguments, he would appear on the Colorado ballot. And if he wins on any of these first four arguments, the court’s decision would be a precedent that all other states would look to when deciding whether Trump should appear on their ballots, and Trump would win everywhere else on that basis, too. (The fifth argument is a narrow ground that would only apply to Colorado.)

What is the other side arguing?

The respondents in this case — Colorado voters — do not need to file their brief until Jan. 31, but we already have a good sense of their arguments. The voters argued that it would be absurd to exclude the office of the presidency from Section 3 when everyone else, from United States senators to county clerks, is covered by the text. They point to popular arguments around the time Section 3 was ratified in 1868 to suggest that many believed it included the presidency.

The voters also looked at Trump’s rhetoric and the crowd’s reaction to it to suggest that his words incited the crowd to action. They argued that calling a mob to interrupt the functions of government rises to the level of an “insurrection.” The voters noted that Section 3 has been enforced in other contexts after the Civil War without overt congressional approval, and that Section 3 could be used to exclude candidates who are disqualified today even if something may change about their eligibility in the future. Finally, they note that state courts interpreted state law faithfully, and any interpretation, even if in error, was not so erroneous to warrant a federal court to reverse.

How important is this case?

It’s a very big deal. A state court excluded the presumptive Republican party presidential candidate from the ballot because it found that he engaged in insurrection. This constitutional provision, which has received very little attention for 150 years, effectively prevents Trump from serving as president, or at least would complicate his path in some states in the months ahead. And it could set up a crisis in 2025 if he wins a majority of the Electoral College and Congress is faced with determining how to handle votes cast for him. Of course, we’ve also never had events like the rioting on Jan. 6, 2021, and a violent interruption of the counting of electoral votes. The case presents novel issues, and issues that will have a profound effect on the 2024 election, however the Supreme Court decides the case.

You filed an amicus brief in this case. What is that?

“Amicus curiae” comes from Latin and means “friend of the court.” Lawsuits typically involve two principal parties — the plaintiff and the defendant — who advocate their positions from the trial court through subsequent appeals. Sometimes, however, other people may want to raise arguments to a court to draw attention to legal or factual issues that they believe would help the court reach its decision. In high-profile cases before the United States Supreme Court, there may be 50 or more such briefs filed. I’m particularly grateful to my attorney who generously worked with me on a pro bono basis. Heather Hacker at the law firm Hacker Stephens LLP helped me complete and file the brief.

What’s the argument in your brief?

I have written for many years about the power of states to administer presidential elections. My brief is in support of neither party, because I am only addressing some narrow issues that could relate to all presidential elections. First, I argue that states have the power to exclude ineligible presidential candidates from the ballot, if they want to. I look back over the years at candidates who were under the age of 35 or who were not natural-born citizens excluded from the ballot. Second, I argue that states have no obligation to exclude ineligible candidates. I note that states have long permitted ineligible candidates on the ballot, if they prefer to leave the choice to the voters. I close the brief with some questions the Supreme Court should be aware of, because how it decides this case could affect other areas of election law.

How does this tie in with your research at Notre Dame?

I write a lot about the role of states in the administration of federal elections, and about the relationship between state and federal law in elections. To name a few, I’ve looked at the rules that Congress uses when counting presidential electoral votes, the sharp rise in spending on election litigation in federal and state courts, what tools courts can use to ensure that state officials do not subvert election results and the scope of state power in determining who appears on the ballot.

What are some other election law projects you’re working on?

The biggest project is a new one from the American Law Institute. Professor Lisa Marshall Manheim at the University of Washington and I will be drafting a new Restatement of the Law, Election Litigation. The goal will be to synthesize the law of elections for judges and attorneys to provide clear guidance and administrable rules when contentious election disputes arise. The project will take several years, but it should be a significant contribution to election administration in the United States.

Contact: Derek T. Muller, dmuller@nd.edu