No.

A23-1354

STATE OF MINNESOTA
IN SUPREME COURT

JOAN GROWE, et al.,

PETITIONERS,

v.

STEVE SIMON, MINNESOTA SECRETARY OF STATE,

RESPONDENT.

BRIEF OF AMICI CURIAE REPUBLICAN NATIONAL COMMITTEE,

NATIONAL REPUBLICAN SENATORIAL COMMITTEE, AND NATIONAL
REPUBLICAN CONGRESSIONAL COMMITTEE IN SUPPORT OF
PETITIONERS

Patrick N. Strawbridge (pro hac vice) Gregory M. Erickson, 276522

CONSOVOY MCCARTHY PLLC Mohrman, Kaardal & Erickson, P.A.
Ten Post Office Square 150 South Fifth Street,
8th Floor South PMB #706 Suite 3100
Boston, MA 02109 Minneapolis, Minnesota 55402 Telephone:
(617) 227-0548 612-341-1074
[email protected] Email: [email protected]

Gilbert C. Dickey (pro hac vice)

Jeffrey S. Hetzel (pro hac vice)
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
703-243-9423

Counsel for Amici Republican National Committee, National Republican Senatorial Committee, and
National Republican Congressional Committee
Charles N. Nauen (#121216) Keith Ellison
David J. Zoll (#0330681) ATTORNEY GENERAL STATE OF
Kristen G. Marttila (#0346007) MINNESOTA
Rachel A. Kitze Collins (#0396555) Nathan J. Hartshorn (#320602)
LOCKRIDGE GRINDAL NAUEN Assistant Attorney General
P.L.L.P. 100 Washington Avenue South, Allen Cook Barr (#399094)
Suite 2200 Minneapolis, MN 55401-2159 Assistant Attorney General
(612) 339-6900 445 Minnesota Street, Suite 1400
[email protected] St. Paul, Minnesota 55101-2131
[email protected] Tel: (651) 757-1252
[email protected] [email protected]
[email protected] [email protected]
Attorneys for Respondent Steve Simon, Minnesota
FREE SPEECH FOR PEOPLE Secretary of State
Ronald Fein (pro hac vice)
Amira Mattar (pro hac vice) Nicholas J. Nelson (#391984)
Courtney Hostetler (pro hac vice) Samuel W. Diehl (#388371)
John Bonifaz (pro hac vice) CROSSCASTLE PLLC
Ben Clements (pro hac vice) 333 Washington Avenue N.
1320 Centre St. #405 Suite 300-9078
Newton, MA 02459 Minneapolis, MN 55401
(617) 244-0234 Tel: (612) 429-8100
[email protected] [email protected]
[email protected] [email protected]
[email protected] Attorneys for Donald J. Trump for President
[email protected] 2024, Inc.
[email protected]
Attorneys for Petitioners R. Reid LeBeau II (#347504)
JACOBSON, MAGNUSON,
ANDERSON & HALLORAN, P.C.
180 E. Fifth St. Ste. 940
St. Paul, MN 55101
Tel: (651) 644-4710
[email protected]
Attorneys for Respondent Republican Party of
Minnesota

ii
 TABLE OF CONTENTS

Table of Authorities ............................................................................................................................ iv

Interest of Amici Curiae ...................................................................................................................... x
Introduction........................................................................................................................................... 1
Argument ............................................................................................................................................... 2
I. This is the inappropriate forum for this dispute. ................................................................ 2
A. Section Three does not apply until after an election. ..................................................... 2
B. Section Three, a Reconstruction measure, did not give state officials power to
frustrate the federal government or national will. ................................................................... 5
C. The U.S. Supreme Court has cautioned against state control over similar election
issues even outside the Reconstruction context .................................................................... 10
D. Congress has not authorized pre-election enforcement of Section Three in state
courts. ........................................................................................................................................... 11
II. Primary ballot cleansing violates National Republican Amici’s First Amendment
rights. ................................................................................................................................................ 12
III. Section Three does not cover former Presidents. ........................................................ 14
A. Presidents do not take an oath “to support” the Constitution................................... 14
B. The President is not an “officer of the United States” because that phrase never
includes the President in the Constitution. ............................................................................ 16
IV. Section Three does not cover holding the presidency. ................................................ 19
V. Congress stayed Section Three. ........................................................................................... 21
Conclusion ........................................................................................................................................... 22
Certificate of Document Length ...................................................................................................... 23

iii
 TABLE OF AUTHORITIES
Cases

Allen v. Cooper,
140 S. Ct. 994 (2020) ........................................................................................................................ 3

Am. Commc’ns Ass’n, C.I.O. v. Douds,

339 U.S. 382 (1950) ........................................................................................................................ 15

Anderson v. Celebrezze,
460 U.S. 780 (1983) ........................................................................................................................ 20

Biden v. Nebraska,
143 S. Ct. 2355 (2023) .................................................................................................................... 20

Bird v. United States,

187 U.S. 118 (1902) .......................................................................................................................... 4

California Democratic Party v. Jones,

530 U.S. 567 (2000) ..................................................................................................................12, 13

Chiafalo v. Washington,
140 S. Ct. 2316 (2020) ................................................................................................................ 3, 10

City of Rome v. United States,

446 U.S. 156 (1980) .......................................................................................................................... 5

Cousins v. Wigoda,
419 U.S. 477 (1975) ........................................................................................................................ 12

Eu v. San Francisco Cnty. Democratic Cent. Committee,

489 U.S. 214 (1989) ..................................................................................................................12, 13

Henson v. Santander Consumer USA Inc.,

582 U.S. 79 (2017) .......................................................................................................................... 20

Illinois v. Krull,
480 U.S. 340 (1987) ........................................................................................................................ 14

In re Griffin,
11 F. Cas. 7 (C.C.D. Va. 1869) ..................................................................................................... 11

John Doe No. 1 v. Reed,

561 U.S. 186 (2010) ........................................................................................................................ 10

Kusper v. Pontikes,
414 U.S. 51 (1973) .......................................................................................................................... 12

iv
Lubin v. Panish,
415 U.S. 709 (1974) ........................................................................................................................ 12

NLRB v. Noel Canning,

573 U.S. 513 (2014) .......................................................................................................................... 3

Powell v. McCormack,
395 U.S. 486 (1969) .......................................................................................................................... 4

Purcell v. Gonzalez,
549 U.S. 1 (2006) .............................................................................................................................. 9

Robers v. United States,

572 U.S. 639 (2014) ........................................................................................................................ 15

Tashjian v. Republican Party of Connecticut,

479 U.S. 208 (1986) ..................................................................................................................12, 13

U.S. Term Limits, Inc. v. Thornton,

514 U.S. 779 (1995) ......................................................................................................... 1, 4, 10, 20

United States v. Greathouse,

26 F. Cas. 18 (C.C.N.D. Cal. 1863)................................................................................................ 7

Vermilya-Brown Co. v. Connell,

335 U.S. 377 (1948) .......................................................................................................................... 4

Constitutional Provisions

U.S. Const. amend. XII ..................................................................................................................... 18

U.S. Const. amend. XIV, §3 ...................................................................................................... passim

U.S. Const. art. II, §1...................................................................................................................... 3, 15

U.S. Const. art. II, §2.......................................................................................................................... 18

U.S. Const. art. II, §3.......................................................................................................................... 18

U.S. Const. art. II, §4.......................................................................................................................... 18

U.S. Const. art. II. .........................................................................................................................14, 15

U.S. Const. art. VI ................................................................................................................. 14, 16, 18

U.S. Const., art. I, §6 ............................................................................................................................ 3

v
Statutes

5 U.S.C. §3331 ........................................................................................................................ 14, 15, 18

Act of June 25, 1948,

62 Stat. 683 ...................................................................................................................................... 22

Act of June 25, 1948,

62 Stat. 869 ...................................................................................................................................... 22

Act of May 22, 1872,

17 Stat. 142 ...................................................................................................................................... 21

Act of May 31, 1870 (First Ku Klux Klan Act),

16 Stat. 140 ...................................................................................................................................... 11

Congressional Materials

37 Cong. Globe 2173 (1862) ............................................................................................................... 7

39 Cong. Globe 919 (1866) ............................................................................................................... 19

39 Cong. Globe 2460 (1866) ............................................................................................................. 21

39 Cong. Globe 2537 (1866). ............................................................................................................ 20

39 Cong. Globe 2544 (1866) ............................................................................................................. 11

41 Cong. Globe 948-49 (1869-70) ..................................................................................................... 3

41 Cong. Globe 2135 (1869-70) ......................................................................................................... 3

41 Cong. Globe 5195-96 (1869-70) ................................................................................................... 3

41 Cong. Globe 5443-46 (1869-70) ................................................................................................... 3

Journal of the Joint Committee of Fifteen on Reconstruction (1914).......................................................... 21

Other Authorities

2 Debates on the Federal Constitution (Elliot ed. 1876) ......................................................................... 4

2 Joseph Story, Commentaries on the Constitution of the United States (1833) .................................... 16

2 The Records of the Federal Convention of 1787 (Farrand ed., 1911) ................................................. 19

Barron, The Judicial Code,

8 F.R.D. 439 (1949) ........................................................................................................................ 22

vi
Baude & Paulsen, The Sweep and Force of Section Three,
172 U. Pa. L. Rev. (forthcoming 2024) ..................................................................................... 6, 8

Black’s Law Dictionary (2d ed. 1910) ................................................................................................ 2

Blake, Yes, experts say protests at SCOTUS justices’ homes appear to be illegal,
Wash. Post (May 11, 2022), perma.cc/BEM7-FCU2 ................................................................. 8

Boyd, 10 Times Democrats Urged Violence Against Trump and His Supporters,
The Federalist (Jan. 8, 2021), perma.cc/CQ37-F29E ................................................................. 8

Boyd, Death Toll Rises To An Estimated 30 Victims Since ‘Mostly Peaceful Protests’ Began,
The Federalist (Aug. 19, 2020), perma.cc/2V7V-NTFP............................................................ 8

Calabresi, Donald Trump Should be on the Ballot and Should Lose,

Volokh Conspiracy (Sept. 16, 2023), perma.cc/LP5Y-MJ97 .................................................. 17

Calabresi, President Trump Can Not Be Disqualified,

Wall St. J. (Sept. 12, 2023), perma.cc/RX7S-RGF8 .................................................................... 2

Congressional Record Containing the Proceedings of the Senate Sitting for the Trial of William W. Belknap
(1876) ................................................................................................................................................ 17

Cooley, A Treatise on the Constitutional Limitations Which Rest the Legislative Power of the States of the
American Union (1868) .................................................................................................................... 13

Deese, Vandalism, looting following Floyd death sparks at least $1B in damages nationwide: report,
The Hill (Sept. 16, 2020), perma.cc/T2N4-KC67 ...................................................................... 7

DHS, Homeland Threat Assessment (2024),

perma.cc/FML8-TP83 .................................................................................................................... 9

Feldman, Alas, Trump Is Still Eligible to Run for Office,

Wash. Post (Aug. 20, 2023), perma.cc/T5DT-V7BV ................................................................ 2

Fleetwood, DHS Admits Biden’s Border Crisis Is Making It Easier For Terrorists To Enter America,
The Federalist (Oct. 11, 2023), perma.cc/X9NK-SXJ6 ............................................................. 9

Garner & Scalia,

Reading Law: The Interpretation of Legal Texts (2012) ........................................................ 13, 14, 18

Hinds’ Precedents of the House of Representatives of the United States (1907) .................................... 3, 10

Hoffman, More than 60 Secret Service officers and agents were injured near the White House this
weekend,
CNN (May 31, 2020), perma.cc/5H3J-Q2BD ............................................................................ 7

vii
Holcombe & Boyette, Seattle police to remove concrete barriers around precinct that was temporarily
vacated during George Floyd protests,
CNN (Apr. 3, 2021), perma.cc/KMJ8-VU5U ............................................................................. 7

Honderich, US man charged with attempted murder of Justice Brett Kavanaugh,

BBC (June 9, 2022), perma.cc/A7T9-XB7P ................................................................................ 8

@JoeBiden, X (Aug. 28, 2020),

perma.cc/GSH6-W9EP .................................................................................................................. 7

John Tyler, White House Historical Ass’n,

perma.cc/23RJ-AWWJ .................................................................................................................. 19

Keeley, Rep. Steve Scalise, Shot by Sanders Supporter, Replies to Request for Evidence of ‘Bernie Bros’
Being Bad: ‘I Can Think of an Example’,
Newsweek (Feb. 20, 2020), perma.cc/3D4C-6SPX ................................................................... 9

Lange & Honeycutt, Biden staff donate to group that pays bail in riot-torn Minneapolis,
Reuters (May 30, 2020), perma.cc/5FBJ-MTST.......................................................................... 7

Leonnig, Protesters’ breach of temporary fences near White House complex prompted Secret Service to move
Trump to secure bunker,
Wash. Post (June 3, 2020), perma.cc/E75G-XTJL .................................................................... 7

Lessig, A Terrible Plan to Neutralize Trump Has Entranced the Legal World,
Slate (Sept. 19, 2023), perma.cc/98J9-FFUU........................................................................... 2, 7

Lincoln, Gettysburg Address (1863) .................................................................................................. 5

Lurie, Trump Officials Can No Longer Eat Out in Peace,

Mother Jones (June 23, 2018), perma.cc/JJL3-YP3D ................................................................ 8

Marcus, Meet the Rioting Criminals Kamala Harris Helped Bail Out of Jail,
The Federalist (Aug. 31, 2020), perma.cc/9S6A-NBBG ........................................................... 7

McEvoy, 14 Days of Protests, 19 Dead,

Forbes (June 8, 2020), perma.cc/P4YA-MJ5W ........................................................................... 7

Mcknight, The Electoral System of the United States (1878) ................................................................ 17

Memorandum from Antonin Scalia to Honorable Kenneth A. Lazarus,

Re: Applicability of 3 C.F.R. Part 100, OLC (Dec. 19, 1974), perma.cc/GQA4-PJNN ......... 17

Memorandum from William H. Rehnquist to the Honorable Egil Krogh,

Re: Closing of Government Offices, OLC (Apr. 1, 1969), perma.cc/P229-BAKL ....................... 17

viii
Montoya-Galvez, Are terrorists trying to enter the U.S. through the southern border? Here are the facts.,
CBS News (Oct. 11, 2023), perma.cc/89MW-55PW ................................................................. 9

Montoya-Galvez, Biden administration sues Texas over floating border barriers used to repel migrants,
CBS News (July 24, 2023), perma.cc/UA4B-DPWA ................................................................. 9

Moreno, Schumer warns Kavanaugh and Gorsuch they will ‘pay the price’,
The Hill (Mar. 4, 2020), perma.cc/TX9J-BUX8 ......................................................................... 8

Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis (2017) ..................................... 6

Retired St. Louis police captain killed during unrest sparked by George Floyd death,
CBS News (June 3, 2020), perma.cc/69RN-EYAM................................................................... 7

Tillman & Blackman, Offices and Officers of the Constitution Part III: The Appointments,
Impeachment, Commissions, and Oath or Affirmation Clauses,
62 S. Tex. L. Rev. 349 (2023)..................................................................................................15, 18

Warmbrodt, Waters scares Democrats with call for all-out war on Trump,
Politico (June 25, 2018), perma.cc/E7XR-JAV4......................................................................... 8

Webster’s American Dictionary of the English Language (1828) ................................................. 2

ix
 INTEREST OF AMICI CURIAE

Amici Republican National Committee, National Republican Senatorial Committee,

and National Republican Congressional Committee—collectively, National Republican

Amici—are political organizations that help their members achieve electoral victories at the

local, state, and national level, and who work to ensure a fair and equal electoral process.

National Republican Amici have an interest in controlling their primaries and nominating the

candidates of their choice. They also have an interest in ensuring that the rules governing

elections are lawful and fairly applied. And they have an interest in promoting any of their

potential nominees’ ballot eligibility and electoral success.

x
 INTRODUCTION

The Reconstruction Congress did not grant state officials sweeping authority to

undermine the federal government.1 But Petitioners have resurrected and reimagined Section

Three of the Fourteenth Amendment to do just that. Their Petition makes a series of legal

errors, and this Court should reject it. First and foremost, this is the wrong forum for this

dispute. Petitioners seek to rewrite the text of Section Three to prohibit not just “hold[ing]

office” but running for it, thereby authorizing pre-election adjudication that ultimately denies

voters and Congress a say. Their theory of enforcement depends on the historically

unreasonable proposition that the Reconstruction Congress gave States, including former

Confederate States, the power to independently decide which national candidates and

officeholders were illegitimate. Their proposed relief would interfere with political-party

primaries, which violates Republicans’ First Amendment rights. They misread the text and

history to apply Section Three to former Presidents and future Presidents, even though the

text references the Article VI oath of office that no President has ever taken. And last, they

defy Congress’s choice to end Section Three enforcement long ago.

“The people are the best judges [of] who ought to represent them. To dictate and

control them, to tell them whom they shall not elect, is to abridge their natural rights.” U.S.

Term Limits, Inc. v. Thornton, 514 U.S. 779, 794-95 (1995) (internal quotation marks omitted).

Petitioners set forth an unprecedently broad theory of Section Three’s enforcement and scope

that would displace that right and would have predictable escalation effects. They invite this

1No counsel for any party authored this brief in whole or in part, and no person other than
amici or their counsel made a monetary contribution to the brief’s preparation or submission.

1
Court to fire the first shot. Even former President Trump’s most public critics, however, hope

that cooler heads prevail. E.g., Lessig, A Terrible Plan to Neutralize Trump Has Entranced the Legal

World, Slate (Sept. 19, 2023), perma.cc/98J9-FFUU; Calabresi, President Trump Can Not Be

Disqualified, Wall St. J. (Sept. 12, 2023), perma.cc/RX7S-RGF8; Feldman, Alas, Trump Is Still

Eligible to Run for Office, Wash. Post (Aug. 20, 2023), perma.cc/T5DT-V7BV.

Amici Republican National Committee, National Republican Senatorial Committee,

and National Republican Congressional Committee—collectively, National Republican

Amici—do not take sides in presidential primary battles or endorse particular presidential

primary candidates in open elections. Petitioner’s arguments, however, threaten massive

upheaval to the political process and future national candidates of all parties. Amici therefore

respectfully oppose the Petition.

ARGUMENT

I. This is the inappropriate forum for this dispute.

A. Section Three does not apply until after an election.

Section Three cannot be enforced at the ballot stage. It governs only who can “hold”

office. U.S. Const. amend. XIV, §3. It does not govern who can “run for” office or “be elected

to” anything. To “hold” office means to presently possess it. See Hold, Black’s Law Dictionary

(2d ed. 1910) (“[T]o possess; to occupy; to be in possession and administration of; as to hold

office.”); Hold, Webster’s American Dictionary of the English Language (1828) (“To have; as,

to hold a place, office or title.”). And regardless of whether Section Three is self-executing, any

“‘prophylactic’” extension must come from Congress. Allen v. Cooper, 140 S. Ct. 994, 1004

2
(2020). Former President Trump does not “hold” office by running for or being elected as

President, so Section Three does not forbid him from either.

This interpretation is consistent with the rest of the Constitution. The Constitution

always uses “hold” to refer to present occupation of the office, not the period of candidacy or

election. See, e.g., U.S. Const., art. II, §1 (“He shall hold his Office during the Term of four

Years...”); id. art. I, §6 (“[N]o Person holding any Office under the United States, shall be a

Member of either House....”). On Petitioners’ account, Section Three deviates from this

consistent usage despite no textual or historical evidence to support that reading.

Historical practice shows that Section Three did not apply before elections. See Chiafalo

v. Washington, 140 S. Ct. 2316, 2326 (2020) (“‘Long settled and established practice’ may have

‘great weight in a proper interpretation of constitutional provisions.’”); NLRB v. Noel Canning,

573 U.S. 513, 525 (2014) (“the longstanding practice of the government can inform our

determination of what the law is” (cleaned up)). After the ratification of Section Three, several

candidates’ qualifications were challenged under Section Three. Hinds’ Precedents of the House of

Representatives of the United States 474-86 (1907) [hereinafter Hinds’]. In each case, the challenges

were not decided by election officials or judges, and not before the election. Instead, Congress

resolved the challenges after the candidate won his election through an evidentiary and

deliberative process. See, e.g., 41 Cong. Globe 948-49, 2135, 5443-46, 5195-96 (1869-70).

Even when the challenged candidate was obviously disqualified—such as when he led

Confederate troops in violent battles against the United States—the candidate did not

implicate Section Three until he sought to “hold” office after the election. See Hinds’ 478-86.

At that time, a formal complaint would be lodged, Congress would hear evidence, and

3
Congress would decide before the person was sworn in. See, e.g., Hinds’ 474-86; 41 Cong. Globe

948-49, 2135, 5443-46, 5195-96 (1869-70). Courts did not decide qualification pre-election; it

was a “political question beyond the competence of courts to decide.” Vermilya-Brown Co. v.

Connell, 335 U.S. 377, 380 (1948).

Pre-election enforcement would also thwart Section Three’s design. The last clause of

Section Three gives Congress the power to “remove” the disability. U.S. Const. amend. XIV,

§3. So Congress can ultimately seat anyone, regardless of whether they are qualified. But if

state officials can impose the disability preemptively at the ballot stage, it would deprive

Congress of this power and render the last clause meaningless in many cases. Of course,

“[t]here is a presumption against a construction which would render a [provision] ineffective

or inefficient.” Bird v. United States, 187 U.S. 118, 124 (1902).

Finally, pre-election enforcement of Section Three silences voters. “The people are the

best judges [of] who ought to represent them. To dictate and control them, to tell them whom

they shall not elect, is to abridge their natural rights.” Thornton, 514 U.S. at 794-95 (quoting 2

Debates on the Federal Constitution 292-93 (Elliot ed. 1876) (Livingston)). But for a court to decide

this question before the people can vote is to do exactly that. “‘The true principle of a

republic,” in Alexander Hamilton’s famous words, “is[] that the people should choose whom

they please to govern them.’” Powell v. McCormack, 395 U.S. 486, 540-41 (1969) (brackets

omitted) (quoting 2 Debates on the Federal Constitution 257 (Elliot ed. 1876) (A. Hamilton)).

Nothing more subverts that principle than pre-emptive ballot cleansing by government

officials. Ballot cleansing makes our government no longer one “‘by the people.’” Thornton,

4
514 U.S. at 821 (quoting Lincoln, Gettysburg Address (1863)). Section Three’s text and history

do not allow it.

B. Section Three, a Reconstruction measure, did not give state officials power
to frustrate the federal government or national will.

Petitioners’ interpretation of Section Three is especially unlikely given the historical

context. The overwhelming import of the Reconstruction Amendments, including the

Fourteenth Amendment, was to weaken the ability of state governments to disrupt the

mechanisms of the national government. “Those Amendments were specifically designed as

an expansion of federal power and an intrusion on state sovereignty.” City of Rome v. United

States, 446 U.S. 156, 179 (1980).

Yet Petitioners would transform Section Three into a states’-rights superpower. On

their account, the Reconstruction Congress gave state officials—here, state courts and state

election officials—the power to decide the most sensitive political questions about loyalty and

legitimacy, and to then decide on that basis who may stand for election to the most important

position in the national government. Petitioners’ claim that the Reconstruction Congress gave

States, including former Confederate States, the power to independently decide national

candidates’ qualifications with no “congressional permission” is implausible. Petitioners’ Br.

13.

Their theory that Section Three is “self-executing” goes even further. It requires state

officials to nullify any actions taken by already-seated officers whom they conclude satisfy

Section Three. As Petitioners’ most-cited supporters explain, “anybody who possesses legal

authority” at the state level can decide Section Three qualification not only in a pre-election

ballot lawsuit, but also in lawsuits seeking to treat any later official actions as void. Baude &

5
Paulsen, The Sweep and Force of Section Three, 172 U. Pa. L. Rev., at 22-29 (forthcoming 2024); see

also Petitioners’ Br. 12-29 (advancing broad theory of state power to enforce Section Three

without congressional permission). After all, “[t]hose who cannot constitutionally hold office

cannot constitutionally exercise government power, so the subjects of that power can

challenge their acts as ultra vires.” Baude & Paulsen, supra, at 29.

That is the last thing the Reconstruction Congress would have done. Section Three was

enacted by the Reconstruction Congress as it fought to reassert its authority over States that

warred against it and viewed the federal government and its officials as illegitimate. At the state

level, many officials still believed that the Confederate States were legitimate and the Union

was illegitimate. See generally Nicoletti, Secession on Trial: The Treason Prosecution of Jefferson Davis

(2017). If Section Three gave a wide range of state officials the power to disqualify any

candidates whom—in the state officials’ views—engaged in insurrection or rebellion, then it

would have been a self-sabotaging laughingstock. On Petitioners’ theory, the Reconstruction

Congress gave state officials a secessionist’s dream: a new constitutional basis to not only

eliminate pro-Union candidates from the ballot, but also nullify acts of that official, including

their enactment or enforcement of federal legislation. See Baude & Paulsen, supra, at 17-35.

The Reconstruction Congress didn’t do that.

The imprudence of Petitioners’ approach remains obvious today. Petitioners and their

amici define “engag[ing]” in an “insurrection or rebellion” or aiding “enemies” remarkably

broadly. On their theory, these terms cover any support, including “speech,” for anyone’s

“‘concerted, forcible resistance to the authority of government to execute the laws in at least

some significant respect.’” Petitioners’ Br. 45-49; cf. United States v. Greathouse, 26 F. Cas. 18

6
(C.C.N.D. Cal. 1863) (Field, J.) (insurrection or rebellion are no less than treason); accord, e.g.,

37 Cong. Globe 2173 (1862) (Sen. Howard) (insurrection or rebellion “nothing more nor less

than treason”). Petitioners emphasize that Section Three contains “no minimum threshold of

violence or level of armament.” Petitioners’ Br. 47. Given Petitioners’ broad definitions, their

position that a wide range of state officials can independently enforce Section Three would

court anarchy. Even opponents of former President Trump have foreseen the partisan

escalation that this theory invites, and condemned their theory as generating a “nightmare of

uncertainty.” See Lessig, supra.

Here are just a few of the possible implications of leaving this decision to the States,

keeping in mind Petitioners’ broad definitions of the disqualifying terms:

• Vice President Harris, President Biden, and their staffs advocated for, marched with,
and provided material support to rioters in the wake of George Floyd’s death in 2020.2
These rioters stormed the White House, injuring police officers and forcing the
President and his family and staff to shelter in a bunker.3 Over the course of several
weeks, these rioters killed people, attacked and in some instances took over several
government buildings, caused billions of dollars in property damage, and sought to
establish alternative “governments” in the form of so-called “autonomous zones”
across multiple U.S. cities.4 If a state official believes that President Biden or Vice

2 E.g., Marcus, Meet the Rioting Criminals Kamala Harris Helped Bail Out of Jail, The Federalist
(Aug. 31, 2020), perma.cc/9S6A-NBBG; Lange & Honeycutt, Biden staff donate to group that pays
bail in riot-torn Minneapolis, Reuters (May 30, 2020), perma.cc/5FBJ-MTST; @JoeBiden, X (Aug.
28, 2020), perma.cc/GSH6-W9EP.
3 E.g., Hoffman, More than 60 Secret Service officers and agents were injured near the White House this

weekend, CNN (May 31, 2020), perma.cc/5H3J-Q2BD; Leonnig, Protesters’ breach of temporary
fences near White House complex prompted Secret Service to move Trump to secure bunker, Wash. Post
(June 3, 2020), perma.cc/E75G-XTJL.
4 E.g., Holcombe & Boyette, Seattle police to remove concrete barriers around precinct that was temporarily

vacated during George Floyd protests, CNN (Apr. 3, 2021), perma.cc/KMJ8-VU5U; Retired St. Louis
police captain killed during unrest sparked by George Floyd death, CBS News (June 3, 2020),
perma.cc/69RN-EYAM; McEvoy, 14 Days of Protests, 19 Dead, Forbes (June 8, 2020),
perma.cc/P4YA-MJ5W; Deese, Vandalism, looting following Floyd death sparks at least $1B in
damages nationwide: report, The Hill (Sept. 16, 2020), perma.cc/T2N4-KC67; Boyd, Death Toll

7
 President Harris aided these efforts, he may eliminate President Biden and Vice
President Harris from the ballot. And because these actions preceded the 2020 election,
that would mean that the United States has not had a valid President since January 2021
and that all federal criminal convictions, regulations, and laws enacted since then are
subject to legal challenge as “ultra vires.” Baude & Paulsen, supra, at 29.

• After the Supreme Court heard an abortion case in 2020, Senator Chuck Schumer
attempted to impede it from carrying out its lawful duty. He stood before the Court
and threatened Justices by name: “I want to tell you Gorsuch. I want to tell you
Kavanaugh. You have released the whirlwind and you will pay the price. You won’t
know what hit you if you go forward with these awful decisions.”5 Democrats
continued this rhetoric as the Supreme Court decided Dobbs, and their supporters did
turn violent. Many supporters illegally protested outside of Justices’ homes to
intimidate them and still continue to do so.6 And at least one attempted to assassinate
Justice Kavanaugh.7 Assuming one believes Senator Schumer or his fellow Democrats
engaged in conduct tantamount to an insurrection, then by Petitioners’ rationale every
judicial nominee voted on by them and every law passed by them since then may be
invalidated on that basis.

• During the Trump Administration, many prominent Democrats publicly directed their
supporters to violently confront Administration officials. As Democratic
Congresswoman Maxine Waters said, “If you see anybody from that Cabinet in a
restaurant, in a department store, at a gasoline station, you get out and you create a
crowd and you push back on them.”8 Around the same time, many Democrat
supporters did violently confront Trump Administration officials.9 Worst of all, a
Democrat supporter attempted to commit a mass murder of Republicans when he
attacked a Republican baseball practice in advance of the Congressional Baseball
Game, shooting at several sitting Republican members and staff and seriously

Rises To An Estimated 30 Victims Since ‘Mostly Peaceful Protests’ Began, The Federalist (Aug. 19,
2020), perma.cc/2V7V-NTFP.
5 E.g., Moreno, Schumer warns Kavanaugh and Gorsuch they will ‘pay the price’, The Hill (Mar. 4,

2020), perma.cc/TX9J-BUX8.
6 E.g., Blake, Yes, experts say protests at SCOTUS justices’ homes appear to be illegal, Wash. Post (May

11, 2022), perma.cc/BEM7-FCU2.

7 E.g., Honderich, US man charged with attempted murder of Justice Brett Kavanaugh, BBC (June 9,

2022), perma.cc/A7T9-XB7P.
8 E.g., Warmbrodt, Waters scares Democrats with call for all-out war on Trump, Politico (June 25,

2018), perma.cc/E7XR-JAV4; Boyd, 10 Times Democrats Urged Violence Against Trump and His
Supporters, The Federalist (Jan. 8, 2021), perma.cc/CQ37-F29E.
9 E.g., Lurie, Trump Officials Can No Longer Eat Out in Peace, Mother Jones (June 23, 2018),

perma.cc/JJL3-YP3D.

8
 wounding Representative Steve Scalise.10 On Petitioners’ theory, state officials may
disqualify these Democrats or nullify their acts if they determine them to constitute
insurrection or rebellion, or giving aid or comfort to the enemies of the United States.

• Elected Democrats have supported, if not facilitated, widescale illegal immigration.11

Since the Biden Administration took power, the number of foreign terrorists entering
the country has increased significantly.12 Many of these terrorists are members of
official foreign-enemy groups.13 State officials who believe that facilitating their
criminal entry and future crimes constitutes aid or comfort to our enemies can remove
these Democrats from ballots and nullify acts of this Administration. They could also
treat judges appointed by Democrat Senators as illegally appointed without
jurisdiction.14

Needless to say, just like the events underlying Petitioners’ theory, Americans are divided on

how to answer these questions. But allowing state officials in their own judgment to remove

the offenders from the ballot or nullify federal authority is not something a Reconstruction

Congress would prescribe.

“Confidence in the integrity of our electoral processes is essential to the functioning of

our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). Allowing political

10 E.g., Keeley, Rep. Steve Scalise, Shot by Sanders Supporter, Replies to Request for Evidence of ‘Bernie
Bros’ Being Bad: ‘I Can Think of an Example’, Newsweek (Feb. 20, 2020), perma.cc/3D4C-6SPX.
11 Montoya-Galvez, Biden administration sues Texas over floating border barriers used to repel migrants,

CBS News (July 24, 2023), perma.cc/UA4B-DPWA.

12 Montoya-Galvez, Are terrorists trying to enter the U.S. through the southern border? Here are the facts.,

CBS News (Oct. 11, 2023), perma.cc/89MW-55PW.

13 Fleetwood, DHS Admits Biden’s Border Crisis Is Making It Easier For Terrorists To Enter America,

The Federalist (Oct. 11, 2023), perma.cc/X9NK-SXJ6 (citing DHS, Homeland Threat Assessment
(2024), perma.cc/FML8-TP83).
14 If this Court rules for Petitioners, it also means that Former President Trump was not the

lawful President beyond the afternoon of January 6. That would render invalid and open to
legal challenge or nullification any legislation that he signed during that time, any pardons he
issued, and arguably any official acts done by the federal executive branch, which was, by this
account, acting under the authority of an unconstitutional President. Courts may need to
reopen every federal criminal investigation and revisit every pardon made during that time.

9
opponents to pick each other off ballots based on their normative differences would ruin

confidence in our electoral processes.

C. The U.S. Supreme Court has cautioned against state control over similar
election issues even outside the Reconstruction context.

Even outside the Reconstruction context, the United States Supreme Court has long

warned in broad terms against state control over national election qualifications. “In light of

the Framers’ evident concern that States would try to undermine the National Government,

they could not have intended States to have the power to set qualifications.” Thornton, 514 U.S.

at 810. States cannot even enforce state law to disqualify someone from federal office; those

qualifications are set and enforced by the federal government, usually Congress. Id. at 810-11;

see also Chiafalo 140 S. Ct. at 2324 n.4 (“if a State adopts a condition on its appointments that

effectively imposes new requirements on presidential candidates, the condition may conflict

with the Presidential Qualifications Clause”). Indeed, in the aftermath of the Civil War,

Congress itself judged whether candidates for federal office were disqualified under state law,

just like they did for federal law, including Section Three. See Hinds’ 471.

In fact, the notion of state control over who appears on ballots for federal office would

have been unfamiliar to the ratifiers of the Fourteenth Amendment. At the time, state and

local governments did not control who was on the ballot at all. See John Doe No. 1 v. Reed, 561

U.S. 186, 226 (2010) (Scalia, J., concurring in the judgment). Parties distributed ballots; state

and local governments accepted and counted them. Id. It would have shocked the ratifiers to

hear an argument that Section Three itself empowers state and local officials to intervene at

the ballot stage to enforce their views of federal qualifications.

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 D. Congress has not authorized pre-election enforcement of Section Three in
state courts.

The Fourteenth Amendment contemplates a mechanism by which Congress can

authorize others to enforce Section Three, but Congress has not done so. Section Five of the

Fourteenth Amendment gives Congress “the power to enforce, by appropriate legislation, the

provisions of this article,” including Section Three. U.S. Const. amend. XIV, §3. That

Congress has not exercised that power to authorize private plaintiffs to sue or state officials

to adjudicate Section Three means that this determination still belongs exclusively to Congress.

The drafters of Section Three understood that it would require implementing

legislation. “If this amendment prevails,” its principal proponent explained, “[i]t will not execute

itself.” 39 Cong. Globe 2544 (1866) (Rep. Stevens) (emphasis added). Even when Congress

wanted Section Three enforced with respect to state offices, it believed that implementing

legislation was required. That’s why it authorized federal law enforcement actions to remove

such officers. See Act of May 31, 1870 (First Ku Klux Klan Act), ch. 114, §§14, 15, 16 Stat.

140, 143.

Sure enough, immediately after Section Three was ratified, Chief Justice Chase

dismissed a Section Three lawsuit because “legislation by Congress is necessary to give effect

to” Section Three. In re Griffin, 11 F. Cas. 7, 26 (C.C.D. Va. 1869). He said that the removal of

disqualified officeholders “can only be provided for by [C]ongress.” Id. That remains the law

today. This Court is therefore not the forum to entertain the underlying Petition.

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 II. Primary ballot cleansing violates National Republican Amici’s First
Amendment rights.

Enforcing Section Three at the primary stage would also violate the First Amendment

rights of National Republican Amici and their members and supporters. “Under our political

system, a basic function of a political party is to select the candidates for public office to be

offered to the voters at general elections.” Kusper v. Pontikes, 414 U.S. 51, 58 (1973). National

Republican Amici help carry out this function, including in the upcoming presidential primary

in Minnesota.

A party’s right to select candidates is protected by the First Amendment. “[T]he

processes by which political parties select their nominees” are subject to the “limits imposed

by the Constitution.” California Democratic Party v. Jones, 530 U.S. 567, 572-73 (2000). “It is well

settled that partisan political organizations enjoy freedom of association protected by the First

and Fourteenth Amendments.” Eu v. San Francisco Cnty. Democratic Cent. Committee, 489 U.S.

214, 224 (1989). “‘The ability of the members of the Republican Party to select their own

candidate ... unquestionably implicates an associational freedom.’” Jones, 530 U.S. at 575

(ellipsis in original). It is “central to the exercise of the right of association.” Tashjian v.

Republican Party of Connecticut, 479 U.S. 208, 214 (1986)

When a State intrudes “upon the selection of the party’s nominee,” it violates that First

Amendment right. Jones, 530 U.S. at 577 n.7; accord Cousins v. Wigoda, 419 U.S. 477, 487-88

(1975). Among other things, that means “ballot access must be genuinely open to all, subject

to reasonable requirements” such as objective popular-support metrics. Lubin v. Panish, 415

U.S. 709, 719 (1974). States must always leave it up to a party and its members “to select a

‘standard bearer who best represents the party’s ideologies and preferences.’” Eu, 489 U.S. at

12
224; see also Republican Party of Connecticut, 479 U.S. at 216 (primary is “the crucial juncture at

which the appeal to common principles may be translated into concerted action, and hence

to political power in the community”).

Removing former President Trump from the ballot violates this right. It denies ballot

access to one of the Party’s potential candidates. It ruptures the “process[] by which

[Republicans] select their nominees” and denies them their “‘ability … to select their own

candidate.’” Jones, 530 U.S. at 572, 575. And it unconstitutionally puts in the hands of the State

rather than the party the right to select a “‘standard bearer who best represents the party’s

ideologies and preferences.’” Eu, 489 U.S. at 224. If Republicans cannot nominate the

candidate of their choice, then the primary system will no longer be theirs.

Nor can Section Three supersede this First Amendment right. “[T]here can be no

justification for needlessly rendering provisions in conflict if they can be interpreted

harmoniously.” Garner & Scalia, Reading Law: The Interpretation of Legal Texts 180 (2012). Since

Section Three’s phrase “hold office” and the First Amendment right of political parties can

easily be interpreted harmoniously by not applying Section Three at the primary stage, that

harmonious interpretation must prevail. See Cooley, A Treatise on the Constitutional Limitations

Which Rest the Legislative Power of the States of the American Union 58 (1868) (“one part is not to be

allowed to defeat another, if by any reasonable construction the two can be made to stand

together”).

Even if they did conflict, the conflict would be governed by the general-specific canon

and the First Amendment would win. Even “when conflicting provisions simply cannot be

reconciled,” “the specific provision is treated as an exception to the general rule.” Garner &

13
Scalia, supra, at 183. The First Amendment carves out one specific protected right—of political

parties to select their own candidates at the primary stage—from Petitioners’ vast construction

of Section Three’s prohibitions. That specific protection must prevail.

III. Section Three does not apply to former Presidents.

Section Three applies only to people who have previously taken the Article VI Oath to

support the Constitution. A prerequisite to Section Three disqualification is “an oath, as a

member of Congress, or as an officer of the United States, or as a member of any State

legislature, or as an executive or judicial officer of any State, to support the Constitution of

the United States.” U.S. Const. amend. XIV, §3. But that is not the oath that Presidents take.

They take the Article II oath to “preserve, protect, and defend the Constitution.” U.S. Const.

art. II. And they are not and never have been considered “executive … Officers … of the

United States” under the Article VI Oath Clause. This exclusion of the presidency makes sense

because the drafters had no former Presidents on their minds.

A. Presidents do not take an oath “to support” the Constitution.

Everyone who drafted Section Three was familiar with the Article VI Oath Clause,

which was part of the original Constitution. Article VI requires an “Oath” of “Senators and

Representatives,” “Members of the several State Legislatures,” and “all executive and judicial

Officers, both of the United States and of the several States.” U.S. Const. art. VI. They must

take an oath to “support this Constitution.” Id.; see also Illinois v. Krull, 480 U.S. 340, 351 (1987).

Congress has always required this oath by law. See 5 U.S.C. §3331 (to “support” the

Constitution).

14
 Section Three applies to officers who took the Article VI oath. Section Three refers to

an “oath.” U.S. Const. amend. XIV, §3. It refers to the same exact categories of people who

take that oath: “a member of Congress,” “a member of any State legislature,” “an officer of

the United States,” or “an executive or judicial officer of any State.” Id. And it refers to not

just any oath, but the oath to “support the Constitution.” Id. The drafters of Section Three

were referring to the same oath “to support” the Constitution everybody already knew.

“Generally, ‘identical words used in different parts of the same statute are ... presumed to have

the same meaning.’” Robers v. United States, 572 U.S. 639, 643 (2014). Congress’s decision to

refer to the Article VI oath in Section Three makes sense because that was the relevant oath

for every past officeholder possibly within Congress’s contemplation.

But Presidents have never taken the Article VI oath. The statute carrying into effect

the Article VI Oath Clause confirms that it applies to a wide range of government officials

“except the President.” 5 U.S.C. §3331 (emphasis added). There is “no historical evidence that

the President has ever taken a separate oath pursuant to the Article VI Oath or Affirmation

Clause.” Tillman & Blackman, Offices and Officers of the Constitution Part III: The Appointments,

Impeachment, Commissions, and Oath or Affirmation Clauses, 62 S. Tex. L. Rev. 349, 423 (2023).

Presidents take a different oath. Their oath is prescribed by Article II. See U.S. Const.

art. II, §1; see also Am. Commc’ns Ass’n, C.I.O. v. Douds, 339 U.S. 382, 415 (1950) (“For the

President, a specific oath was set forth in the Constitution itself. Art. II, §1.”). In that oath,

they do not swear to “support” the Constitution, as Section Three requires. They swear to

“preserve, protect, and defend the Constitution.” See U.S. Const. art. II, §1 (“I do solemnly

swear (or affirm) that I will faithfully execute the office of President of the United States, and

15
will to the best of my ability, preserve, protect and defend the Constitution of the United

States”). Former President Trump has never taken the Article VI oath “to support” the

Constitution as used in Section Three, but only the Article II oath. He therefore falls outside

the coverage of Section Three.

B. The President is not an “officer of the United States” because that phrase
never includes the President in the Constitution.

The presidency is also not listed in Section Three among those positions whose past

oath would subject them to Section Three. Section Three applies only to a “member of

Congress,” “officer of the United States,” “member of any State legislature,” or “executive or

judicial officer of any State.” U.S. Const. amend. XIV, §3. Petitioners contend that the

President must be an “officer of the United States.” Petitioners’ Br. 36-45. He is not. That is

why he is not required to take the Article VI Oath, even though it applies to “all executive …

Officers … of the United States.” U.S. Const. art. VI. And it is consistent with the most

eminent authorities on whether the phrase “officer of the United States” includes the

President.

When Section Three was ratified, it was a matter of public knowledge that the President

was not an “officer of the United States” for constitutional purposes. In his famous

Commentaries, Joseph Story wrote that because the Constitution’s Impeachment Clause lists the

President, Vice President, “and all civil officers (not all other civil officers),” that means that the

President and Vice President were “contradistinguished from, rather than ... included in the

description of, civil officers of the United States.” 2 Joseph Story, Commentaries on the

Constitution of the United States 260 (1833).

16
 Less than a decade after the Fourteenth Amendment’s ratification, at least two Senators

said the same thing. Senator Newton Booth said that “the President is not an officer of the

United States.” Congressional Record Containing the Proceedings of the Senate Sitting for the Trial of

William W. Belknap 145 (1876). Senator Boutwell said that “according to the Constitution, as

well as upon the judgment of eminent commentators, the President and Vice-President are

not civil officers.” Id. at 130. Around the same time, a treatise confirmed what Justice Story

wrote: “[i]t is obvious that ... the President is not regarded as ‘an officer of, or under, the

United States.’” Mcknight, The Electoral System of the United States 346 (1878).

In the twentieth century, two future Supreme Court Justices came to similar

conclusions. Future-Justice Scalia wrote that “when the word ‘officer’ is used in the

Constitution, it invariably refers to someone other than the President or Vice President.”

Memorandum from Antonin Scalia to Honorable Kenneth A. Lazarus, Re: Applicability of 3 C.F.R. Part

100, OLC, at 2 (Dec. 19, 1974), perma.cc/GQA4-PJNN. And future-Chief Justice Rehnquist

wrote that “statutes which refer to ‘officers’ or ‘officials’ of the United States are construed

not to include the President unless there is a specific indication that Congress intended to

cover the Chief Executive.” Memorandum from William H. Rehnquist to the Honorable Egil Krogh,

Re: Closing of Government Offices, OLC, at 3 (Apr. 1, 1969), perma.cc/P229-BAKL. Recently, one

scholar who was initially hopeful about Section Three disqualification concluded that it would

not work because the President is not an “officer of the United States.” See Calabresi, Donald

Trump Should be on the Ballot and Should Lose, Volokh Conspiracy (Sept. 16, 2023),

perma.cc/LP5Y-MJ97 (“In my foolish youth, I once argued mistakenly in print that the

President is an ‘Officer of the United States.’ Thirty-three years of academic research and

17
writing on the presidency has persuaded me that the words ‘officer of the United States’ are a

legal term of art, which does not apply to the President.” (citation omitted)).

The Constitution refers to the Presidency as an “office,” e.g., U.S. Const. art. II, but the

phrase “officer of the United States”—the one used in Section Three—never encompasses

the President. Each of the four other constitutional uses of that phrase confirm as much:

• Article VI Oath Clause. Article VI requires an oath of “all executive and judicial Officers …
of the United States.” U.S. Const. art. VI. No President has ever taken an Article VI Oath.
See Tillman & Blackman, supra, at 423. Indeed, the statute carrying into effect the Article
VI Oath Clause confirms that it applies to a wide range of government officials “except
the President.” 5 U.S.C. §3331 (emphasis added).

• Commissions Clause. Article II assigns to the President the duty to “commission all the
officers of the United States.” U.S. Const. art. II, §3 (emphases added). But “[t]he President
has never commissioned himself.” Tillman & Blackman, supra, at 412. Nor have
Presidents received commissions from their predecessors. See id. That unbroken
practice would be unconstitutional if “all the officers of the United States” included
the President.

• Appointments Clause. Article II assigns to the President the power to “appoint

Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and
all other Officers of the United States, whose Appointments are not herein otherwise
provided for, and which shall be established by Law.” U.S. Const. art. II, §2 (emphases
added). Again, since the President does not appoint himself, the phrase “all other
Officers of the United States” does not include him. And his “appointmen[t]” is not
otherwise provided for because the President is not “appoint[ed]” at all—he is elected.
See U.S. Const. amend. XII; id. art. II.

• Impeachments Clause. Last, Article II describes the impeachment process for the
“President, Vice President, and all civil officers of the United States,” U.S. Const. art. II, §4.
(emphasis added). The first two items would be superfluous if “all” of the “officers of
the United States” included the President. But see Garner & Scalia, supra, at 174 (“If
possible, every word ... is to be given effect.”). And because the last category does not
contain the word “other,” it is not a catch-all clause that also comprehends the first
two categories, but rather a distinct third category. Again, that’s because the President
is never a constitutional “officer of the United States.”

Drafting history confirms what the text suggests. When the Impeachments Clause was

drafted, it initially referred to the President, Vice President, and “other civil officers of the U.S.”

18
2 The Records of the Federal Convention of 1787, at 545, 552 (Farrand ed., 1911). But upon further

deliberation, the drafters changed the Impeachments Clause to remove the word “other.” Id.

at 600. That change does not make sense if the President is an “officer of the United States.”

It is unsurprising that Section Three does not reach beyond those who took the Article

VI oath. First, at the time, all former Presidents had previously taken the Article VI oath as

state or federal officeholders before their elections, so reaching further would have been

unnecessary. Second, there were no former Presidents on the drafters’ minds at all anyway.

Only one former President had joined the Confederacy, but he was dead. See John Tyler, White

House Historical Ass’n, perma.cc/23RJ-AWWJ. It is fantastic of opponents of former

President Trump to say that the drafters anticipated and expanded Section Three to reach him.

IV. Section Three does not cover holding the presidency.

Even if former President Trump had taken the Article VI Oath, Section Three does

not disqualify anyone from becoming the President. By its terms, Section Three disqualifies

people only from holding the following positions: “Senator or Representative in Congress,”

“elector of President and Vice-President,” or “any office, civil or military, under the United

States, or under any State.” U.S. Const. amend. XIV, §3.

The first draft of what became Section Three provided that nobody could “hold the

office of President or Vice President of the United States, Senator or Representative in the

national Congress, or any office now held under appointment from the President of the United

States, and requiring the confirmation of the Senate.…” 39 Cong. Globe 919 (1866). Congress

then eliminated “the office of President or vice president of the United States” and enacted

Section Three without it. See U.S. Const. amend. XIV, §3. Of course, courts “presume

19
differences in language like this convey differences in meaning.” Henson v. Santander Consumer

USA Inc., 582 U.S. 79, 86 (2017); see also Thornton, 514 U.S. at 810 n.20 (deciding election-

qualifications questions based in part on “[t]he Framers’ decision to reject a proposal allowing

for States to recall their own representatives”). It is not for this Court to second-guess the

drafters’ decision.

If the drafters wanted to use Section Three to overturn presidential elections, it is

unlikely that they would have been indirect. Although the drafters identified specifically

“member[s] of Congress,” “member[s] of any State legislature,” and even “elector[s] of

President and Vice-President,” Petitioners contend that they also covered duly elected

Presidents—the most important position in America—in the same catch-all class as entry-

level bureaucrats. It is more likely that “officer under the United States” referred only to

subordinate offices and that the highest offices were identified by name. This follows from the

“commonsense principle[] of communication” that drafters communicate major decisions—

like whether they are proposing to disqualify duly elected Presidents—with clarity. Biden v.

Nebraska, 143 S. Ct. 2355, 2380 (2023) (Barrett, J., concurring).

This also makes sense in historical context. “[T]he President and the Vice President of

the United States are the only elected officials who represent all the voters in the

Nation.” Anderson v. Celebrezze, 460 U.S. 780, 795 (1983). The drafters of the Fourteenth

Amendment were not trying to subvert the national will, but a regional will. Their concerns

were with things like “prevent[ing] the intrusion of arch traitor Jefferson Davis into the Senate.”

39 Cong. Globe 2537 (1866). Section Two, which restricted representatives from the former

20
Confederate States, ensured that no Confederate would soon become President as a matter of

math, and nobody mentioned such a concern in the ratification debates.

V. Congress stayed Section Three.

Section Three’s final clause allows Congress to eliminate its force. Because it was

tailored for a unique crisis, Section Three’s last clause provides that “Congress may by a vote

of two-thirds of each House, remove such disability.” U.S. Const. amend. XIV, §3.

Congress has eliminated the disability of Section Three in full. In 1872, it enacted a law,

with two-thirds support in both Houses, that provided blanket removal of any disqualifications

under Section Three:

[A]ll political disabilities imposed by the third section of the fourteenth article
of amendments of the Constitution of the United States are hereby removed
from all persons whomsoever, except Senators and Representatives of the
thirty-sixth and thirty-seventh Congresses, officers in the judicial, military, and
naval service of the United States, heads of departments, and foreign ministers
of the United States.

Act of May 22, 1872, ch. 193, 17 Stat. 142. Because former President Trump is among “all

persons whomsoever,” and does not fit into any of the exceptions, this statute therefore

eliminates “all political disabilities imposed by [Section Three]” as to him.

The 1872 statute completed the plan for what was once going to be guaranteed in

Section Three’s actual text. The Joint Committee on Reconstruction had originally proposed

a draft of Section Three that automatically terminated on “the 4th day of July, in the year

1870.” See Journal of the Joint Committee of Fifteen on Reconstruction 118 (1914); see also 39 Cong.

Globe 2460 (1866).

Congress decided, in enacting this 1872 statute, that Section Three was an unusual

remedy for an unusual time. It mercifully put Section Three to rest. In fact, the previous

21
statutes authorizing Section Three enforcement were formally removed in 1948 in a

codification that all agreed made no substantive changes to the law—because there was

nothing left to enforce going forward. See Act of June 25, 1948, ch. 646, §39, 62 Stat. 869, 993;

see also Act of June 25, 1948, 62 Stat. 683; Barron, The Judicial Code, 8 F.R.D. 439 (1949). When

political opponents now resurrect Section Three—in state courts, rather than in Congress—

to try to remove a candidate from the ballot based on events over which Americans are

divided, perhaps it is easy to see why Congress put this provision to rest. Today’s

decisionmakers must respect that decision.

CONCLUSION

This Court should deny the petition.

Dated: October 20, 2023

/s/ Patrick N. Strawbridge s/Gregory M. Erickson

Patrick N. Strawbridge (pro hac vice) Gregory M. Erickson, 276522
CONSOVOY MCCARTHY PLLC Mohrman, Kaardal & Erickson, P.A.
Ten Post Office Square 150 South Fifth Street,
8th Floor South PMB #706 Suite 3100
Boston, MA 02109 Minneapolis, Minnesota 55402 Telephone:
(617) 227-0548 612-341-1074
[email protected] Email: [email protected]

Gilbert C. Dickey (pro hac vice)

Jeffrey S. Hetzel (pro hac vice)
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Ste. 700
Arlington, VA 22209
703-243-9423

Counsel for Amici Republican National Committee, National Republican Senatorial Committee, and
National Republican Congressional Committee

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 CERTIFICATE OF DOCUMENT LENGTH

This request complies with the word limitations of Minn. R. Civ. App. P. 132.01 The

brief was prepared with proportional font, using Microsoft Word, which reports that the

request contains 6,824 words, exclusive of the parts that can be excluded.

s/Gregory M. Erickson
Gregory M. Erickson, 276522
Mohrman, Kaardal & Erickson, P.A.
150 South Fifth Street,
Suite 3100
Minneapolis, Minnesota 55402 Telephone:
612-341-1074
Email: [email protected]

23