If Not Voters, Then Who?

Suit was brought, and summarily tossed in the Southern District of Florida by Judge Robin Rosenberg for lack of standing. The suit sought a declaratory judgment that Trump was disqualified under Section 3 of the Fourteenth Amendment.

Plaintiffs ask the Court to enter a declaratory judgment barring Defendant from (1) seeking the office of President of the United States and (2) participating in the Florida Presidential primary election in 2024. Plaintiffs assert that Defendant is ineligible to serve as President under the Fourteenth Amendment because of his alleged participation in events that took place at the United States Capitol on January 6, 2021, and related activities. The Court concludes that it lacks subject matter jurisdiction and dismisses the Complaint.

Without regard to whether you accept or reject the argument proffered by Will Baude and Michael Stokes Paulsen, or even Larry Tribe and Judge Luttig, it leaves many questions unanswered. Much as a self-effectuating clause may seem cool, who decides it’s to be executed, and if that’s not you, how do you compel the person who makes the call to make what you deem the right call?

Here, Plaintiffs lack standing to challenge Defendant’s qualifications for seeking the Presidency, as the injuries alleged are not cognizable and not particular to them. Plaintiffs allege that they have standing because Plaintiff Caplan has actively participated in the last twelve Presidential elections, voted for both Republicans and Democrats, is a Florida resident and United States citizen, is an attorney and member of various courts, and has never been sanctioned. Plaintiffs further allege that Plaintiff Butin is a Florida resident and United States citizen and Plaintiff Strianese is a Nevada resident and United States citizen. Id. Plaintiffs allege they will suffer injury if Defendant is allowed to run for President and prevail when he could be disqualified or removed from office. However, an individual citizen does not have standing to challenge whether another individual is qualified to hold public office. See, e.g., Kerchner, 612 F.3d at 207; Berg v. Obama, 586 F.3d 234, 239 (3d Cir. 2009).

If not voters, then who? Section 3 makes no requirement that the person disqualified need be convicted of insurrection, although it provides no clue how that disqualifying fact is to be determined. In a recent talk at a local bookstore, Rep. Jamie Raskin argued that Trump’s disqualification was established by the fact that a majority of the House and Senate found in his impeachment and trial that Trump incited insurrection, and that while it was not sufficient for impeachment, it was sufficient to establish his disqualification. Was that good enough?

It seems clear that a candidate disqualified would have standing to challenge his own disqualification should whomever has the power in a state to refuse to place the candidate’s name on the ballot. Would a competing candidate have standing to compel the state not to place the candidate’s name on the ballot? Would they have standing to force the state to remove the candidate’s name?

Other than a candidate, who would suffer a sufficiently cognizable and particular injury to give rise to standing?

Further, at least two courts have concluded that citizens attempting to disqualify individuals from participating in elections or from holding office based on the January 6, 2021 events at the United States Capitol lacked standing. See, e.g., Stencil v. Johnson, 605 F. Supp. 3d 1109 (E.D. Wis. 2022). In Stencil, the plaintiffs sought a declaratory judgment that three members of Wisconsin’s Congressional delegation were ineligible to serve under the Fourteenth Amendment because their participation in the January 6 attack constituted an insurrection against the United States. Among other things, the court determined that the plaintiffs lacked standing and explained that “[e]very citizen and voter could claim to have suffered the same injury as the plaintiffs here, which amounts to nothing more than engaging in political advocacy against candidates for office or issue advocacy against the views the candidates hold. The relief that the plaintiffs seek would no more directly and tangibly benefit them than it would the public at large.” See also Hill v. Mastriano, No. 22-2464, 2022 WL 16707073, at *1 (3d Cir. Nov. 4, 2022) (plaintiff seeking declaratory judgment disqualifying defendant from running for governor based on January 6, 2021 events lacked standing, rendering claim subject to dismissal). The Hill court also noted that “the appropriate process for testing title to public office” is a writ of quo warranto, which must be filed in the United States District Court for the District of Columbia and may only be filed by the sovereign or a representative thereof.

A writ of quo warranto  (Latin for “by what warrant”) was a common law writ to challenge a person’s right to hold office. although individual members of the public had standing as citizens and taxpayers. Yet, Judge Rosenberg’s dicta states that such a write “may only be filed by the sovereign or a representative thereof.” Does that mean any office holder, state or federal, has standing? Does that mean that the common law standing of citizens and taxpayers has been abrogated by caselaw for lack of particularized injury?

Regardless of what might follow a state’s determination that Trump is disqualified under Section 3, such as protests and even fighting in the streets, it seems possible that at least one state official will make the decision to adopt the Section 3 disqualification position and refuse to place Trump’s name on the ballot in the primary or, should it be decided that Section 3 applies only to general elections rather than primaries, the final ballot, there will be litigation to challenge the action and compel the state or official to place Trump’s name on the ballot.

We will then have fierce litigation which could well take far longer than the time available between the decision being made public and the date for the general election. Indeed, the time required to reach a final determination could exceed the time between the election and the end of the current president’s term. What then, as we can’t have a nation without a president to head the executive branch of government, and Joe Biden’s term of office will have expired without anyone to replace him?

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