Strict Scrutiny - Does the Constitution Disqualify Trump from Presidency?

Episode Date: February 5, 2024

This week the Supreme Court will hear arguments in the case about whether Donald Trump is eligible to run for president, or whether he's disqualified from doing so by a provision of the 14th Amendment that prevents individuals from holding public office if they've engaged in insurrection. As part of the preview of the arguments, Kate, Melissa, and Leah welcome Rick Hasen, author of A Real Right To Vote: How A Constitutional Amendment Can Safeguard Democracy. Follow us on Instagram, Twitter, Threads, and Bluesky

Hey, everyone. As you probably know, we typically release our episodes on Monday mornings. But last week, we got to sit down with E. Jean Carroll and her attorney, Robbie Kaplan, right on the heels of their historic $80-plus million jury award from Donald Trump. We had a wide-ranging conversation about what lay behind the decision to bring the lawsuit, what it was like to be in court with Donald Trump, and what might come next. We released that conversation as a special bonus episode on Friday. So if you haven't already, be sure to check it out wherever you get your podcasts. word. She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex.

All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw. And this is a very big week at the Supreme Court. On Thursday, the court will hear arguments in the case about whether Donald Trump is eligible to run for president or whether he's disqualified from doing so by a provision of the 14th Amendment that prevents individuals from holding public office if they've engaged in insurrection. And for this episode, we are delighted to be joined by friend of the show, Rick Hassan, professor of law and political science at UCLA, where he also directs the Safeguarding Democracy Project. Rick, welcome back to Strict Scrutiny. It's great to see all of you.

Rick is the author of a forthcoming book, A Real Right to Vote, How a Constitutional Amendment Can Safeguard Democracy. And we're going to talk about that book today and actually use the book as a launchpad to discuss the disqualification argument, since the issues in the case very much relate to Rick's book. So Rick, as an election, voting rights, law of democracy scholar, can you situate this case, the disqualification case, for us in a general sense? So how big a deal is it that the court is poised to decide whether Donald Trump is disqualified from office because of the events leading up to and including January 6th? And how does this case potentially compare to other big cases involving the election that the court will

hear or has heard in the past? Right. Well, you know, this case is in some ways very different than anything else. The court hasn't weighed in as a court on the question of a candidate being disqualified for insurrection. That's really not a surprise. We don't have a lot of people being accused credibly of engaging in insurrection. So this is a moment that reflects the Trump era rather than reflects anything on the Supreme Court. But in some ways, this case is familiar to those of us who are old enough to remember Bush v. Gore, the 2000 case that ended the disputed presidential election between George W. Bush and Al Gore. The Supreme Court was asked to weigh in

then after the election. It issued a very controversial opinion, ended the recount, handed the election to Bush. And here we are now, more than two decades later, now the court's being asked to weigh in before the election in a pretty outcome-determinative way. If the court says, for example, that Donald Trump is disqualified, that's going to totally change the election. And it's going to change who people can vote for. If they say that he can run, then this issue may be kicked down the can until next January, and maybe we'll see some political action to try to exclude Trump if he appears to win. And if they punt, then I think it's just going to be

utter chaos. So the court can't do anything that's not going to have an effect on the upcoming election. Well, that sounds like it's going to work out well. But before turning to more of the details of the disqualification case, Rick, let's get the basic argument of the book on the table. So the introduction to the book begins with the Supreme Court case, Minor versus Happerstatt. Our listeners may not be super familiar with that one. So could you share with them what that case is about and how it animates the argument for the book? Sure. And I should say before I talk about Minor, that people are really shocked who are not lawyers to find out that there's no affirmative right to

vote in the Constitution. And if you look at our, you know, our what I call our peer countries, you look at Canada or Germany, or they have in their constitutions a right to vote. What do we have? In the original Constitution, there was very little reference to being able to vote, you couldn't vote for President, you couldn't vote for the Senate. And who's allowed to vote for the House? Well, that's only people that the states say can vote. And so many states excluded lots of people, most notably women and African Americans, Native Americans. There were other groups in some places, people who didn't own property. Fast forward to past the Civil War, you get the 14th Amendment. The 14th Amendment, among other things, protects citizens' privileges or immunities of citizenship.

And Virginia Minor was a white woman, citizen of Missouri. She wanted a vote. She was told by Missouri officials she couldn't vote because the Constitution only let men vote. And she said, I'm a citizen. Voting is a privilege or immunity of citizenship. I get to vote. And the all-male Supreme Court said, no, you don't. You are a citizen, which the court, of course, didn't say about everybody, but say, you are a citizen. But the question of voting rights is a question for states. And it was not, that was 1874 in Minor versus Appersett. It was not until 1920, as Leah, as you know well, since we've co-authored an article on the 19th Amendment, it's not until 1920 that we get the 19th Amendment that says no discrimination on the basis of sex in voting. Of course, that too doesn't say that you have the right to vote. It just says,

if you're going to hold an election, you can't discriminate on the basis of sex. So it is a really good and important reminder that you actually start the book with, Rick, that there is no affirmative right to vote in the Constitution. And yet there are, in addition to the 19th, which prohibits denial of the right to vote on the basis of sex, there are a couple of other negative references to the right to vote, right? Other places in the Constitution where there are prohibitions on denying the right to vote, right? Other places in the Constitution where there are prohibitions on denying the right to vote if, you know, where the right to vote exists. So can you talk a little bit about those other constitutional provisions, aside from the 19th

Amendment? The history of the 19th Amendment, after the 19th Amendment passes, just about everywhere in the country, women are allowed to vote. And in fact, one of the arguments I make in the book is that by the time we get to the 19th Amendment, most places are already letting women vote under state constitutions. What happens after Minor versus Hepperson is that there's a political movement to enfranchise women. And that's a really important lesson because I think we need a new political movement on voting rights. The story on the 15th Amendment is even worse than the story on the 19th Amendment. The story on the 15th Amendment is we have the Civil War, the Reconstruction Amendments, 13th abolishing slavery, 14th we talked a little bit about and also includes equal protection

and due process. And then you get to the 15th Amendment, which says if you're going to hold an election, no discrimination on the basis of race. Despite that, you get after a period of some enfranchisement of black voters and black male voters in the South, you get this period of retrenchment where essentially there is disenfranchisement completely in the South by the end of the 19 Jackson Giles goes to the U.S. Supreme Court. He says, I'm a citizen of the United States. I am a resident of Alabama. Alabama is not, and I'm a man. And Alabama is not letting me vote, despite the fact that I seem to qualify. And the 15th Amendment says, no discrimination on the basis of race.

And the Supreme Court says, oh, well, you're right. No discrimination based on race, but there's nothing we can do about it. And it's not until the passage of the Voting Rights Act in 1965, so another 62 years later, when you actually get real enfranchisement of black voters in the South. And so just passing a constitutional amendment is, even that is not a guarantee of a right to vote. And it took political action in Congress. And getting the Voting Rights Act took years of struggle, took death threats and violence and all the kinds of things that were put up against the civil rights movement in order to get that.

The fight over 18 to 21-year-old voting, that one turned out to be a lot easier. That was the fastest amendment. That's in the 26th Amendment. There wasn't a lot of controversy over that. Kids were being sent over to fight in the Vietnam War, and it was felt if you could fight in the war, you should have the right to vote for the president who's going to send you there. Also not controversial was the 23rd Amendment, which gave D.C. voters the right to vote for president. Hard to imagine in our polarized society today that that would pass. But in that moment, that was not that controversial. And then the last one here

would be the 24th Amendment comes right after the passage of the 23rd Amendment on DC voting rights. This one says no poll taxes in federal elections. It's followed up a couple years later by the Supreme Court. In the only period of time in its entire 235 year history, where it's hospitable to voting rights during the Warren court, the court says no poll taxes in state elections either. The book is terrific. And it gives us this really rich history that talks about the court sort of oscillating commitment to protecting voting rights. And as you say, there is this high watermark with the Warren Court, but then it decidedly goes downhill from there. The periods before and after the Warren Court are decidedly downhill. But there's some other history that you canvass here that may be less familiar to readers. And for example, the book discusses some of the cases and events out of, wait for it, Texas, where Texas apparently has

this very rich history of disenfranchising individuals, including military voters. And that led to a Supreme Court decision in a case called Carrington versus Rash, which you talked about. And Texas also seems to have a lot of appetite for disenfranchising younger voters, particularly those at the largest historically black college and university in the state of Texas, Prairie View A&M. So can you tell us a little bit about these cases and how they sort of contribute to the broader narrative that you're telling about this imperiled right to vote or this sort of weak and in need of bolstering right to vote? Well, you've got to hand it to Texas, right? So they didn't just go after the students,

as you might expect, they went after the military. I mean, that was kind of shocking. Thank you for your service. The idea was, you know, if you are in the military and you just get stationed in Texas, there was a different rule if you were born in Texas, you lived in Texas before you joined the military. But if you were like Sergeant Carrington, you were in one state and you moved to Texas, he was transferred in the army to actually to White Sands, New Mexico, moves his family to El Paso. And he goes to vote in the Republican primary and he's told that the Texas Constitution says he can't vote. And the case makes it all the way to the U.S. Supreme Court, where Texas makes really two

arguments. One is kind of a familiar one. It's if you are not a established yourself as a resident, you don't have the right to vote. And that's not all that controversial even today. So like I may care about who the governor of Michigan is, but I don't get to vote in the Michigan election because I'm a resident of California. So the residency rules are accepted. And so it's a fight over, you know, were these just transient people? And this guy had been living in Texas for years, had established a side business. His family is living there. They're going to school. They're working and all this stuff. And the court says, no, he's a resident. But then Texas makes this other argument, which I keep coming back to in the book, which is if we allow military voters to vote, they might actually change the outcome

of elections and swamp the views of the longtime residents here. And the Supreme Court says that this is a pernicious argument. I mean, it's a feature, not a bug of democracy, that if you allow people to vote, they could change the outcome of elections. And the court talks about this as a fencing out. You don't get to decide among residents who is worthy of voting. And I think that even today, and the story of the students in Waller County, the students in Prairie View A&M University, is a story where the courts become very skeptical of Texas's claims that these students are not really residents. So Texas does things like say, for students only,

we're only going to register you to vote if you are married and your spouse works in the county, or if you're living with your parents and your parents are in the county, and the courts start resisting this and saying, you can't do that. What's really at stake in these cases is this is a white rural county. We don't want these young black voters coming in. They might change who gets elected. And, you know, if you look at the history of what some call voter suppression over the last 20, 30, going back even 50 years, it's a story about not just are people legitimately entitled to vote? Are they bona fide residents? It's a story of we're worried about people voting because of how they might vote. And so until we actually protect everyone's right to vote in the Constitution, we're going to see states like Texas trying to

manipulate the denominator in order to affect the outcome of elections. I wanted to ask one question about the kind of Warren Court era and protections, meaningful protections of the right to vote, even without an explicit constitutional provision broadly guaranteeing that right. And then we want to talk a little bit about the oral argument, but I promise we will get back to the proposal. But so just kind of thinking back on the Warren court and this brief kind of outlier period during which the court did act to protect the right to vote, are we worried and should we be worried about these Warren court precedents being vulnerable in the hands of this Supreme Court? And maybe that's part of what animates this desire to actually put something concrete into the Constitution. So we have talked on this podcast a lot about the prospect of the court declaring additional provisions of the Voting Rights Act unconstitutional, obviously something you've written about a lot as well. But what about

kind of broader attacks on Warren Court precedents on things like the one person, one vote cases, like, are those kinds of things vulnerable? And then after that, I think we will transition to previewing the case. Yeah, so cases like Carrington, and there were other cases in this Warren Court period, relied on the Equal Protection Clause of the 14th Amendment, the part that says no state can deny any person equal protection of the laws, to expand voting rights. So there was this line of cases on who gets the vote. And these cases are typically understood today

as requiring the application of strict scrutiny to the question, at least among citizen adult resident non-felons. It's a weird fundamental right. It only applies to some people. But if you're lucky enough to check these four boxes, you can't be discriminated against in terms of being disenfranchised. And then there's a separate line of cases, Kate, as you mentioned, which are the cases that say that when you have elections in districts, you have to make those districts about equal or really equal in population to assure that people have roughly equal voting power. We know in that second line of cases that those are constitutionally

vulnerable. So let me take you back to a case from a few years ago called Evenwell versus Abbott, where Ed Blum, the guy behind the Shelby County case, the guy behind the Fisher affirmative action case, like the guy who brings the worst cases to the Supreme Court and often wins, that guy tried to argue that you had to draw equal numbers of voters rather than equal numbers of people in the districts. It seemed pretty clearly calculated to shift power from urban areas where there are lots of kids and non-citizens to rural areas where there are fewer kids and fewer non-citizens.

It didn't work. But what's most notable about that case, for your question, is that two justices, Alito and Thomas, expressed the view, well, of course there's no requirement to do equal numbers of voters rather than people because there is no one person, one vote requirement. And this was a decision before Gorsuch, Kavanaugh, and Barrett joined the court. Could it be possible to count to five on not reading equal protection clause to require one person, one vote? Could you count to five on the question of whether the cases like Carrington guaranteeing the right to vote to citizen adult resident non-fellows, could those be reversed? I think the only thing that stands

in the way of that is precedent. How much respect for precedent should there be? And we know what this court thinks about precedent. I'm nervous. It would be a huge deal. But then again, you know, we've seen Dobbs. We see what maybe happened to the Chevron doctrine. I, you know, put what is it story decisiveness for suckers? Is that one of your t shirts? I've heard some people say that. Yes. Yes. So you know, if actually we want to protect voting rights, you know, you can't rely on this Supreme Court. Speaking of this Supreme Court and protecting the integrity of elections and votes, this Supreme Court is now being called on to decide whether Section 3 of the 14th Amendment disqualifies Donald Trump from office because of the Trump circle's efforts to interfere with the peaceful transition of power,

allegedly, to undermine the integrity of the election, allegedly, and to challenge lawful votes, allegedly, among other alleged misdeeds. So just a reminder for our listeners, Section 3 of the 14th Amendment says that no one shall, quote, hold any office, end quote, who has engaged in insurrection or rebellion against the United States. So, Rick, your book is about adding additional constitutional protections for the right to vote and for democracy beyond what currently exists. How did Section 3 of the 14th Amendment fit into the reconstruction effort to protect this burgeoning multiracial democracy? And how did Trump World's actions, allegedly,

pose an affront to it? Right. So right after the Civil War, there was the question of reintegrating the southern states back into the Union, and assuring that when that happened, that the former slaves in the South, and the black citizens in other parts of the United States, but especially former slaves in the South, were going to be enfranchised and that they were going to be able to function in society. One of the impediments to that is local government that was potentially going to be resistant. And so there were a number of tools that the federal government put in place to assure that there would be freedom. And in fact, we actually had this period of time where we started getting the election of black

elected officials. It's a period of time that a lot of people have forgotten. Everyone thinks of, you know, there was the South and after the Civil War, there was, you know, no voting rights. There was a period of about 20 years of voting rights that was eventually put down through tremendous violence and repression. But one of the tools early on in the post-Civil War era was to say, those people who were former U.S. government officials who were then part of the Confederacy, those people, those are the people who engaged in insurrection, they're just qualified from running for office unless Congress, by a two thirds vote, gives them back their power to be able to serve again as an elected official. So this part of the 14th Amendment, the 14th Amendment is pretty long. You know, a lot of the other amendments are pretty short.

This one has a bunch of different provisions. Section three is not something I taught before this year. It's Trump has the uncanny ability to get us to look at parts of different provisions. Section three is not something I taught before this year. It's, you know, Trump has the uncanny ability to get us to look at parts of the Constitution we have generally been free to ignore because they didn't really have application. This one that was this, no one doubts this was a post civil war. Let's stop the Confederates from repressing black citizens and black voters provision that it was going to be revived. That's exactly what's happened here. The claim of the plaintiffs in the Colorado case that's before the Supreme Court is

Trump engaged in insurrection. He was an officer of the United States who took an oath to uphold the Constitution. And then he went on the ellipse and he made this speech and he said, fight like hell. And he caused his people to invade the Capitol. That was an insurrection and therefore he's disqualified. That's the claim and it raises a huge number of legal, procedural, and factual issues that the Supreme Court is going to have to disentangle somehow. And I'm not even sure how they're going to do it because the question presented, only on this show could I get into this level of the weave. The question presented is this really vague question that really covers everything. Should Trump be disqualified? The other side, those who want to get Trump disqualified, they've identified seven questions.

Who knows what our argument is going to look like, but it could potentially be a free for all. So we'll talk about some of the potential nuts and bolts involved in the case in a second. But maybe let's talk at a high level about what that oral argument might look like or the justices will consider and should they consider the risks of political violence, either from disqualification or from a second Trump term in making their decision here, and also how basic principles of democracy are implicated by the different potential outcomes in this case. So I should say that I filed an amicus brief in this case, along with I consider myself, you know, on the left. And I filed this brief with Ned Foley, who's very much a centrist, and with Ben Ginsberg, who was Mitt Romney's lawyer,

certainly would not put him on the left. The three of us disagree about lots of things. But we filed this brief, we didn't take an opinion on whether or not Trump should be disqualified. But what we said to the court, I could summarize our brief in two words, don't punt. Don't punt. And the reason you shouldn't punt is, first of all, it's going to create a tremendous amount of uncertainty. And it's going to potentially disenfranchise millions of voters. So imagine that, you know, all these people go to vote, they're all voting for Donald Trump over Nikki Haley in the next few months. And then we find out months later, oh, Trump's actually disqualified. And now it's too late. Maybe Trump's already on the general election ballot.

Then what? Or we get even here's kind of maybe the nightmare scenario. It's Trump versus Biden, too. Looks like Trump's won the Electoral College. We get to the counting of Electoral College votes on January 6, 2025, the fourth anniversary of the insurrection, and Democrats control Congress, and they say, sorry, Supreme Court never weighed in. It's our term. Trump is disqualified, and he can't be president. That's a recipe for violence. That's a recipe for social unrest. So I wrote back in September in The Atlantic, sometimes it's more

important for the law to be certain than to be right. So, you know, Ben and Ned and I may have different views on whether Trump should be disqualified, but we all agree the most important thing is that we know that the Supreme Court tells us whether or not he's disqualified. And there are many, many off ramps that the court could take to not reach that question. For example, they could say, this is a primary election. You're only choosing delegates for the Republican convention. We'll deal with this later. That is what we're trying to get the court to avoid doing. Yeah. And one particular punt that has been offered in the case is a brief filed by a National Republican Committee that urges the court to basically do what you just suggested and say, well, actually,

it's okay for insurrectionists to run for office and to win election, but they can't actually hold the office such that you would hold the election, Trump could win, and then Congress would decide whether to remove the disqualification or not, or whether the disqualification existed, in which case, if they concluded he is disqualified, maybe the election goes to the vice president on the ticket. And that I agree sounds like chaos. I mean, an ideal scenario, right, this could have been resolved back in 2021, like had the Senate convicted Trump of the offenses related to January 6, and disqualified him. But we are already living in this kind of second best world. And the question is kind of like what to do with it then? Yeah, I think I put so much of the blame, if we're going to go back

to 2021 on Mitch McConnell. Remember, after the election, Trump is impeached for the second time. He is then put on trial in the Senate. A majority of senators, 57 senators, including some Republicans, could try to convict him, but it takes a two-thirds vote. Mitch McConnell says, no, we're not going to do this. Trump's already out of office. What we're going to do is we're going to leave it to the criminal and civil processes. And he kicked the can down the road. If they would have convicted him, as you mentioned, Leah, they would have had the option to disqualify him as well. That would have done a tremendous service to the country at that time. And instead, we get this delay. Merrick Garland sits on his

hands for an extra year. Now Trump is playing a game of beat the clock, which he may well win on the indictment in the election interference case that I think now at best could go to trial in April if we get a quick ruling from the D.C. Circuit. So, yeah, that moment has passed. And so now what's the court going to do? It does not have any good options. Then again, you know, if it allowed Colorado to disqualify but didn't weigh in at all, then I think there'd be even more uncertainty about what's going to happen.

And I think they really had to take this case. Take it and decide it right in your view and not punt, but really decided on the merits. And I think so. So that's a defense you just offered of the position that your brief with Ginsburg and Foley takes, which is stability, anti-chaos, and some notion that it's sometimes and here may be more important that the law be settled than it necessarily be settled, right? So even if we stipulate all of that, I'm wondering whether there's a concern that this case and the calls that the court needs to resolve the issues in this case

may have the effect of just cementing the Supreme Court supremacy at a moment when there are actually very good reasons to question or challenge that. And actually there's something in the answer that you just gave to Leah that I wanted to ask you about that I think teased this up, which is that, do I understand you to take the position that if the court resolves this case on the merits, that would disable Congress from

revisiting this question when it actually comes to certifying the winner of the election, when it actually comes to count the electoral votes? And what does that mean for our system more broadly outside of this particular dispute? I mean, that's a really great question. And I don't think that Congress would be disabled because Congress, members of Congress have an independent obligation to uphold the Constitution and to enforce it. They take an oath to, the oath is part of this case as well. I mean, people who took that oath that need to uphold it. But I think that if we got a definitive legal ruling from the Supreme Court, let's say first that Trump is disqualified, then in those states, like I think maybe it was Texas, I can't remember

where, where they said, we're going to put Trump on the ballot anyway, even if he is disqualified, that it's going to take the air out of that and that it's going to be very hard. And Republicans are not going to want Republican voters. They're not going to want Trump to be the nominee of the party when the Supreme Court has already said he's disqualified. It's going to be too risky. And so on that end, there's that. Now, on the other end, Trump wins the election. So he wins the majority of the Electoral College and Democrats control Congress. That could happen. Not that likely, but it could happen. Could they vote to disqualify him? I don't think the Supreme Court's opinion would preclude that, but it would make it much harder politically. note that there's a big discrepancy between what Trump argued in his cert petition in this case. His opening argument in his cert petition was, this is a non-justiciable political question. It's like partisan gerrymandering. Courts can't hear this kind of stuff. That argument is totally gone. Jonathan Mitchell, like, memory hold that. It's gone. Well, I think it had to be gone after the main secretary of state, right, independently disqualified Trump after the Colorado Supreme Court did.

Because if you say it's a non-justiciable political question, then other political institutions can make the decision. Right. But I think even more of a worry than the main secretary of state is the worry about Congress disqualifying. I think that so if you imagine a scenario, Supreme Court punts, Trump appears to win. Democrats say you're disqualified. We're going to make Stefanik the new president. Okay, we're all trying to imagine that. And then Trump's going to want to go to the Supreme Court and say they can't disqualify me. So I think that more than anything else is why this political question argument has gone away. So I don't think it is entirely out of the political process, but I think it would take the air either way out of those kinds of political attempts to sidestep the Supreme Court. On the more general point about the Supreme Court, you know, even elevating it even more, I think, you know, with more than 20 years of passage since Bush versus Gore, I've calmed down a little. And one of the things I think I can say is it was the election

was a statistical tie. We needed some rule to figure out who the tiebreaker should be. I think you could make an argument that Congress, and I think you've written this, Kate, that Congress was just as good of a tiebreaker in that circumstance as the court. And I think that's a pretty good argument. Here, I don't see Congress as a good tiebreaker because we are so much more polarized because our democracy is unstable

and there's a risk of violence. That the Supreme Court is the least worst actor here. And especially, I think there's a big difference. If the court rules seven to two, eight to one, or nine to zero in one direction, that's going to send a very different message than if it's the six Republican appointed justices taking the position that Trump is not disqualified compared to the three Democratic appointed justices. That is going to be a situation where I think there's not going to be deference to the Supreme Court. And I think John Roberts behind the scenes has got to be like that's got to be the number one thing for him to try to avoid.

He's very good at corralling his caucus. So I'm sure that he's on that. You've already surfaced some of the arguments that have been swirling around the disqualification question. You know, obviously, the political question one has been sidelined for the moment, but there are arguments around whether or not Section 3 even applies to the President of the United States. And that's been explicitly argued by Donald Trump. There's another argument that's a really big one, which is whether Section 3 actually requires enabling legislation, which is to say that Congress has to first pass a law disqualifying someone or saying that people are disqualified for engaging in insurrection before it becomes operative. And we've talked about this argument before, noting that the final clause of Section 3 notes that Congress may, by a vote of two-thirds of each House, remove such disability. And by explicitly providing for Congress's role in eliminating the disqualification, it suggests that there's strong inference that it didn't actually contemplate an exclusive role for Congress in imposing the disqualification

in the first place. So as these arguments go before the court, which ones do you think are going to get prime time, get the most attention? And which do you think are likely going to be the fulcrum around which an ultimate decision is rendered? Yeah, so I spent some time studying Trump's brief on the merits. So this is not the one when he initially made the political question argument. It's the later one. And he spends like three times

the space on this hyper-technical argument that the president is not an officer of the United States than he does on these other arguments. For example, that when he was speaking, he didn't engage in insurrection and his speech is protected by the First Amendment and stuff like that. I think you're going to see heavy emphasis on that technical argument. And the benefits of that technical argument for the conservatives on the Supreme Court is that it's a way to rule for Trump, and it would apply nationally. This just doesn't apply to the president. And it would be a way to issue a technical ruling that would not weigh in on whether Trump engaged in insurrection.

So I think the gamble was that it has that appeal. The problem with that argument is that it has that appeal. The problem with that argument is that it is fundamentally ridiculous. It is an argument that says, yes, well, that's true. But the problem is, what kind of constitutional provision would you be writing that would say, we don't want you to be a Confederate dog catcher. You know, if you were a government official, you took an oath and then you later want to serve in any office, you can't unless you're president. Then, of course, Confederates welcome.

I mean, it just defies logic. One thing insurrectionists can do is be commander in chief of the army. Like that seems a little bit odd. Also, you know, the people that wrote this provision, one person who may have been in their minds was, I don't know, the president at the time, Andrew Johnson, who was basically like undermining reconstruction and a Confederate sympathizer. So the idea that they would immunize that office in particular is absurd. And the argument rests on the idea that the presidential oath is not actually an oath to support the

Constitution, because the presidential oath says that the president will defend and protect the Constitution. Like it's it's it is ridiculous. But I agree with you that the justices are not going to want to go through all the statements and say, well, did this statement engage in insurrection or not? Like that doesn't seem like what they want to do. I want to note one other argument that appeared way more in the merits brief than in the cert stage brief, although admittedly, not as much as the idea that the section three doesn't apply to the president. And that is hearkening back to our kind of opening discussion and argument from Bush versus Gore, independent state legislature theory, because

just a reminder about what the independent state legislature theory is. Fan fiction. Fan fiction. Fan fiction, conservative fan fiction. This is the conservative fanfic undergirding some of the efforts to overturn the 2020 election. This was also a theory that the Supreme Court weighed in on in Moore versus Harper. You know, in brief, it's the idea that the Constitution requires state legislatures alone, not state courts or state executives, to set the rules regarding federal elections. And the Trump universe used that idea to suggest that state legislatures could just choose to assign their electors to Trump, notwithstanding the popular votes in the state for Biden. And in Moore v. Harper, the North Carolina legislature argued the theory

meant that the state courts couldn't enforce the state constitution to limit partisan gerrymandering when the legislature engaged in it. And here, ISLT is appearing in its kind of original Bush v. Gore formulation, namely that the Colorado state courts so badly misinterpreted Colorado state law here to permit this kind of disqualification challenge that the state courts actually violated the federal constitution and the United States Supreme Court can override the state courts interpretation of state law. So I guess like, what a make of the fact that there is now the independent state legislature fanfic into an opinion that has already basically been legitimated in the public sphere. Talk me down. Yeah, no, I'm not going to talk you down. But first, I just want to respond to this idea that

Section 3 of the 14th Amendment is anti-democratic. I think that's fundamentally wrong. The 14th Amendment is part of the Constitution. To become part of the Constitution, it had to be approved by super majorities of Congress and a super majority of state legislatures. And so it's part of the Constitution and it is democracy enhancing because it says we don't want Confederates running our government. I don't see any democracy problem with it at all. I should say, I think one of the strongest arguments Trump has is that he didn't get good enough due process in terms of how he was able to make his claim. That kind of argument requires a remand maybe, and then that's messy. The independent state legislature theory, I should say, you know, the lawyer who wrote this brief,

the lawyer who brought us the SB8, the law behind the SB8 that brought us this bounty on those who are assisting people in getting abortions. You know, the whole idea of this brief, it's kind of brilliant because it does not rely upon the old independent state legislature theory, the one that was advanced by the Republican legislators in North Carolina that says state legislatures can do anything they want. It's instead what we might call the Postmore versus Harper anti-arrogation theory. And I'm sorry to use that term. It's not mine. The Supreme Court says state courts have lots of freedom to go and interpret their laws. But when they're dealing with, in that case, it was congressional

elections, they can't go so far out of the way that we could say they're arrogating the state legislature's law. So this makes a kind of anti-arrogation law, which is essentially the Colorado legislature did not authorize the Colorado courts to have this kind of procedure. As a matter of state election law, this doesn't seem to me to be so out of the pale. And if they're going to go that route, I think the justices, this is the way I'll talk you off the ledge, Leah, this is going to open up so many more challenges going to the Supreme Court during this election, where every state Supreme Court opinion of every Democratic leaning Supreme Court, Wisconsin, Pennsylvania, you know, line them up, the Supreme Court's going to have to second-guess state law all the way down the line. And so I

don't think they're going to want to go that route either. I was underwhelmed by reading the merits brief by Trump and thinking they haven't really provided an easy off-ramp. And the fact that they lean so heavily on the hyper-techn technical argument about officer shows their weakness. You know, I initially came in thinking, of course, Trump's going to win. And now I read that brief, and I say, I don't know. I'm not like, what's going to get seven votes if that's like the magic number here, if you're John Roberts, you know, what position, it's not going to be ISLT. Leah looks like she might still be on the ledge, but I think that was a noble effort. I don't know that the court opening up this like new, you know, docket of Democratic State Supreme Court, like second guessing, would necessarily be a disincentive to the court. I think I saw Leah feeling.

But I do think that the ISLT argument is just also not convincing in this brief. So maybe this is not, maybe they will just choose another route. But it was an interesting evolution as the briefing progressed. I should say, you may remember that both Gorsuch and Thomas took the view, we don't want to be doing this. I mean, that was kind of surprising. They had a kind of different crazy theory, but they said, we don't want to be second guessing state in Moore versus Harper. We don't want to be second guessing state so so i'm a little less worried about that one and a reminder leah it was the last argument they made and we know that you typically stack your arguments or you put your you what you think

are your winners at the top and that's like the last one so i can be on the ledge but not for that reason Okay, so let's now pivot back to the book. In the book, you write that an amendment could help address election subversion, and you discuss efforts to overturn the results of the 2020 election, which obviously gave rise to the disqualification proceedings that we were talking about. So- Allegedly. Right, allegedly. Okay, so how would a proposed constitutional amendment enshrining the right to vote address

those alleged machinations? Back in Bush versus Gore, it's kind of the font of modern election controversies, the Supreme Court reminded the readers of the opinion that the Constitution contains no right to vote for president. And even though states have given voters the right to vote for president, once they give the right to vote, the right to vote becomes fundamental, at least for citizen, adult, resident, non-felon, becomes fundamental. The states can take back that right at any time. And just in the last few weeks, we've seen a new proposal in Arizona where an Arizona legislator is saying, hey, let's take

the votes away from the people. We, the legislature, should decide who gets the electors from Arizona. I don't think politically that would have a lot of legs. People don't like to be disenfranchised once they're enfranchised. But the idea that people are talking about, what I'm much more worried about, and I write a little bit about this in the book, is what if the Arizona legislature says, you know what? When there are disputes over who's won the presidential election in our state, they are not justiciable. They are to be determined by the legislature sitting as a body of review. That, I think, would be consistent with Article 2. Might not be consistent with Article 2. It might not be consistent with the Due Process Clause. It might not be consistent with equal protection. It depends on how the

court would read it. So there are all of these worries. Until we put in the Constitution, every U.S. citizen, or at least every U.S. citizen who doesn't live in Puerto Rico, D.C., American Samoa, Guam, or the U.S. Virgin Islands is allowed to vote for president. And we don't have to get rid of the, in my proposed amendment, we wouldn't have to get rid of the electoral college. As much as I don't like the electoral college, my book is not fundamentally about changing the electoral college, which I think would make it a much harder amendment to pass. But it says within each state, the winner of those electoral college votes has to be determined by a popular vote and not by a choice of votes. But you also recommend that it include automatic registration, individual voter identification, numbers, as well as

constitutionalizing Section 2's protections of minority voting, equal voting opportunities, and limiting burdens, and strong congressional power to enforce the amendment. And part of your justification for this constitutional amendment is that it would reduce litigation and polarization over voting. And you give two examples of how this might play out. You know, you note litigation over North Dakota's voter identification law, which required residential addresses and disadvantaged Native voters and suggests that litigation might have gone differently, you know, with a constitutional right to vote. And you also allude to the litigation in Brnovich versus DNC, you know, which we've talked about, you know, on this show, which just to remind our listeners was a decision out of Arizona involving two Arizona voting restrictions about third parties returning ballots and the state, you know, throwing out votes that were cast in the wrong precinct. And I guess the skeptic in me wants to know, you know, do you think an amendment would be sufficient to stop the justice from fucking around and like squirreling around with this, particularly when part of the proposal is to constitutionalize Section 2's protections for minority voting,

which the court just messed around with and whittled down in Brnovich? And it could do something similar with an affirmative constitutional amendment guaranteeing different voting rights? It's a great question. It was in my mind the entire time I was writing the book. After all, the history of Giles, as I described earlier, was the Supreme Court refusing to enforce the 15th Amendment. So it's not like that one wasn't, it wasn't like in Minor versus Hepburn said, It's not really a privilege or a medium of citizenship. This says no discrimination on the basis of race. The guy's allegation was I was discriminated on the basis of race.

The Supreme Court throws up its hand. So what are you going to do about it? And so my amendment is written differently than other voting rights amendments. Besides being written affirmatively, you have the right to vote if you fall into these categories. It also directs the Supreme Court in a few ways. First, it enhances Congress's power. Second, it directs the Supreme Court to read the amendment capaciously and not to read it as somehow getting rid of the old voting benefits that the Warren Court had put in place. And third, one of the big problems in voting cases, not that we've

talked much about, the case I'm thinking of most importantly is a case called Crawford versus Marion County Election Board in 2008, is how the court engages in balancing. So states don't just enfranchise their citizen, adult, resident, non-felons. Usually what they do is they put up barriers to make it harder for people to vote. And when the court does what's called Anderson verdict balancing, they put a heavy thumb on the scale and they say, states, you just have to come up with a plausible reason, prevent voter fraud, prevent voter confusion, whatever it is. But if you are challenging this law, you have to come up with a ton of evidence to show that the law actually is burdensome. And that balancing test really favors states. And my amendment explicitly reverses that

balancing test and puts a thumb on the scale favoring voters. Mine is a pro-voter amendment. Now, at the end of the book, I say, this Supreme Court could still resist. But then if the court resists after there's been a popular movement, and there's all of this debate among constitutional scholars about how much the Supreme Court follows public opinion, if the Supreme Court is resistant then, Congress would pass new legislation to further enforce it, and it would become a political fight against the Supreme Court. And we come back to Kate's point about the supremacy of the Supreme Court. It would be much more of a dialogue where the American people have weighed in and said, we want strong protection for the right to vote. It harkens back to what

Justice Ginsburg wrote in her dissent in Shelby County. She said, if you put together the 14th Amendment, the 15th Amendment, the 19th, the 23rd, the 24th, the 26th, you put them all together, there is already a right to vote in the Constitution that Congress is meant to protect and that we should. You know, if the court actually believed that, I would not need to write a real right to vote. But she was in dissent. We need to take those ideas and put them in writing and make the Supreme Court have to face an unambiguous right to vote in the Constitution. OK, so let's put this all together, a synthetic reading of all of these various amendments that have protected in a negative way the right to vote and transform them into an affirmative right to vote. Now the question and the uphill battle, I think, for you, Rick, is getting through the amendment process and meeting the required threshold for ratification.

So what's the path for getting an amendment protecting the right to vote at a time when the right to vote itself has become such a subject of deep contest and polarization? How do we get something like this across the finish line? And the mobilization around the 19th Amendment ended up enshrining the right to vote in 30 state constitutions before it finally made it into the federal constitution. So maybe there's a state level story here that we should be telling in addition to the federal level. The ERA's lessons are also, I think, incumbent on us in this moment. But how do we get there if we buy into your argument? And I think we all do that more is needed to avoid the catastrophes you've outlined. Think about Democrats in 2022. They couldn't pass a right to vote statute, right? They tried to pass the For the People Act.

They tried to pass the John Lewis Voting Rights Amendment Act. Why didn't they pass? Because even though they got a majority in the House, a majority in the Senate, filibuster, right? Joe Manchin was not willing to, and some other Democratic senators were not willing to get rid of the filibuster for voting rights. And of course, the Senate itself, we didn't get into this, the Senate itself is the one big institution besides the Electoral College in the United States that's not apportioned on a one person, one vote basis, favors small states. And so this anti-democratic part of our government is what's blocking democracy. So if we can't get that, how are you going to get a constitutional amendment?

I think the answer is we need to think strategically and longer term. Strategically, organizing around an amendment can be a way to crystallize these issues and say, well, what can we do about it? So we're not having a conversation every four years. Our election system is really bad. We got to fix it. Here's a way to do it. And it provides a way to do it. And it

provides a way to organize politically. And it took decades to get the 19th Amendment. And as you mentioned, Melissa, we saw political progress along the way in state after state. Imagine, you know, almost every state constitution has some right to vote provision in it. Some are enforced better than others. Imagine, especially in states like Leah's Michigan, where they could pass an initiative that will enshrine these voting rights very strongly in the state constitution. That's something more permanent than just a judicial decision. We can imagine a pathway where this stuff could actually happen. Maybe it's not going to be in my lifetime, maybe in my kid's lifetime. But it's something, you know, like why shoot so low? Why have such low expectations for our democracy?

You know, the last voting amendment we passed was 26th Amendment in 1971. We have lost our muscle memory when it comes to passing constitutional amendments. There's lots of constitutional amendments I'd like to see. But voting, as the Supreme Court has said, is fundamental because it's protective of other rights. And so this is where we need to start if we're really going to have a vibrant democracy, to promote political equality, lessen the amount of litigation, as Leah said, and as Kate talked about, make it harder to steal elections. We've got to worry about all these things.

A voting rights amendment, if we could actually do it, would solve all of these problems and make our democracy stronger. Well, it's not going to happen overnight, and it's not going to be easy, but it's really important to start now. So Rick Hasen, thank you so much for joining us. It was great to have you. Once again, listeners, the book is A Real Right to Vote, How a Constitutional Amendment Can Safeguard American Democracy.

Pick it up. It's a great read. It's also short. Is there an audiobook, Rick? There is an audiobook, and there's a Kindle. And I'll come to your house and I'll read to you. Many, many options. So once again, Rick, great. Thanks for joining us. Thank you. I really enjoyed the discussion. It is 2024. And there is so much to do. But it's hard to know where to start. If your decision paralysis has set in, it's now easier than ever to find the

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