Montana politicians weigh in on Trump's legal battle to stay on ballot

Montana is very interested in Colorado.

More specifically, Montana politicians are weighing in on the recent Colorado Supreme Court decision to boot former President and Republican presidential front-runner Donald J. Trump from the 2024 ballot.

At least three prominent Montana leaders have weighed in at the United States Supreme Court with amicus curiae briefs, or friend-of-the-court briefs, arguing that Montana has an interest in the question before the nation’s highest court. Briefs and legal arguments from all over the country are flooding into the U.S. Supreme Court as it is scheduled to hear arguments on the case next week, and a decision is expected before “Super Tuesday,” which is March 6.

Two of the briefs argue that the Colorado Supreme Court made the wrong decision in disqualifying Trump from the ballot, while one supports the decision. The one supporting the decision is being championed by a group of former Republican governors, including Montana’s Marc Racicot.

Meanwhile, Montana Attorney General Austin Knudsen has joined with 16 other state attorneys general to challenge whether one state can remove a candidate from the ballot, thereby diminishing voters in other states. And Montana’s junior senator, Steve Daines, as the head of the National Republican Senatorial Committee, argues that the 14th Amendment of the Constitution says that only Congress can remove a president for insurrection, and that states cannot bar a citizen from appearing on the ballot.

RACICOT, ALONG with former Massachusetts Gov. William Weld, and former New Jersey Gov. Christine Todd Whitman said that Trump’s actions and support of the Jan. 6, 2021 invasion into the U.S. Capitol to stop the certification of the election of then President-elect Joe Biden, a Democrat, amounted to a violation of the 14th Amendment.

“The Fourteenth Amendment’s proscription makes sense,” the former governors, all Republican, argue. “After all, for a democratic republic to survive, such treason or treachery once employed cannot be ignored or forgotten, lest the perpetrator seize the moment once again to betray the people and our Constitution.”

The governors also argue that the Colorado Supreme Court did not decide to bar Trump on its own, rather there was a trial and due process.

“Throughout this extensive process, Mr. Trump’s failure to uphold his oath of office — by plotting, colluding, inciting and countenancing an insurrection — was presented and scrutinized,” the brief at the U.S. Supreme Court said. “Mr. Trump availed himself of competent legal counsel and had the opportunity to cross-examine witnesses, offer rebuttal evidence, and even testify himself.”

After the trial, the Colorado district trial court and Supreme Court came to the conclusion that Trump had engaged in insurrection, in violation of the 14th Amendment, they argue.

“It follows that the Fourteenth Amendment’s disqualification clauses similarly cannot be waived, ignored, or wished away,” the brief said.

The former governors also argue that just because the 14th Amendment hasn’t been invoked previously, does not bar it from being used against Trump. In fact, they argue that U.S. Presidents haven’t acted in a way previously that would undermine the stability and precedent of a peaceful transfer of power from one administration to the next.

“The fact that Section 3 of the Fourteenth Amendment has not previously been applied to a president candidate does not diminish the materiality or the clarity of the constitutional mandate,” it said. “Instead, the disgraceful novelty of this case follows from the unprecedented and largely unimaginable nature of the conduct at issue; never before has our nation seen a president incite an insurrection to disrupt the peaceful transition of power and entrench himself in office, much less then, after his insurrectionist efforts failed, later seek to recapture the presidency.”

ATTORNEYS GENERAL from around the country have been weighing in on a variety of issues in the case, including Montana Attorney General Austin Knudsen, who joined with other top lawyers to argue that the United States Supreme Court should take up the case, if for no other reason, to settle the dispute that could lead to a patchwork of inconsistent rules throughout the nation, with candidates appearing in some states, while being disqualified in others.

They also argue that the Presidency of the United States is a category unto itself because it is the only elected position chosen by electors in all 50 states, and therefore requires a national decision, rather than one decided on a state-by-state basis.

The attorneys general argue that a patchwork of decisions may actually affect voters in other states by diminishing their votes.

“When one state excludes a presidential candidate, votes for that candidate in other states lose value. And when many states exclude the candidate, his or her votes in other states have no value at all,” it said.

Those attorneys general also argue that Congress, not the courts, is the body that decides a matter of insurrection, according to the Fourteenth Amendment of the U.S. Constitution.

The brief also argues that the term “insurrection” is poorly defined and has been used with other terms, like “rebellion” interchangeably, making for inconsistent and contradictory decisions, depending on different states.

“Allowing each state and its courts to determine eligibility using malleable standards would create an unworkable patchwork of eligibility requirements for president,” the brief said.

The group argues that insurrection is a more serious term than the Colorado courts determined, and is something more analogous to an invasion or rebellion, not “merely obstructing.”

The attorneys’ general brief, like that of Daines, argues that Congress, and Congress alone, must decide if a President has engaged in insurrection. The brief said that the voters should be able to choose whom to elect as president, including Trump, and then Congress has the power to decide if he engaged in insurrection.

They also point out that Congress has previously decided that Trump did not engage in insurrection as a clear example of how the process has already worked.

“Congress vigorously applied these powers to President Trump, as the House impeached him twice but the Senate acquitted him both times even when political opponents accused him of fomenting insurrection,” it said.

Congress, the brief said in its interpretation of the Fourteenth Amendment, could decide that Trump did not engage in insurrection. Or, it could determine that Trump did, and, if so, he would then become ineligible, handing the presidency to the vice president.

In their filing, the attorneys general argue that the question is political, not judicial in nature.

“The Constitution does not contemplate a time for the judiciary to second-guess that call,” the brief said. “If courts can decide a candidate’s eligibility for president on a state-by-state basis, chaos will follow.”

DAINES' ARGUMENT, on behalf of the National Republican Senatorial Committee, centers on the distinction between getting on the ballot and getting elected.

The 23-page brief filed with the Supreme Court said that booting Trump from the ballot robs voters of their First Amendment rights of freedom of association and speech to choose who they want to represent them.

He said that neither the states, nor their courts, can set out different rules for presidential candidates — that’s the province of the U.S. Constitution. Moreover, the Fourteenth Amendment means that Congress can decide if Trump engaged in insurrection, but voters must first be given the choice to vote for him or not.

“By its plain text, Section 3 (of the 14th Amendment) identifies a disqualification from serving in certain offices, but does not disqualify a covered person from running for office,” the brief said. “Even worse, it threatens to decide the outcome of the 2024 election by stripping the American people of the right to elect the president and transferring that right to state courts.”

The court documents argue that Colorado, and possibly other states, may not add to the requirements outlined by the U.S. Constitution to elect a president. Doing so, the brief argues, is illegal and violates citizens’ constitutional rights.

“Individual states could adopt different qualifications for the office of a president who represent the nation as a whole — including qualifications that conflict with the qualifications adopted in other states,” the brief said. “In that scenario, no president could ever be elected because no candidate could receive a majority of votes in the Electoral College.”

The argument makes the distinction between who can appear on the ballot, and who can serve in office.

Daines’ argument goes onto to say that the 20th Amendment to the Constitution helps clarify the problem, by saying that if a president is disqualified then the vice president shall serve the term or until the president becomes eligible.

“The plain ‘text’ of Section 3 makes clear that its disqualification applies on to serving in one of the enumerated offices, not to seeking them,” the court brief said.

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, a nonprofit newsroom. To read the article as originally published, click here.