The Libertarian National Committee is currently deliberating upon a proposal put forward by one of its members, which calls for the LNC’s endorsement of a resolution urging the United States Supreme Court to allow voters the freedom to choose their preferred candidates. The proposed language comes in response to recent state government attempts to exclude former President Donald Trump from the 2024 ballot.
In late December 2023, the Colorado Supreme Court removed former President Donald Trump from the state’s ballot, citing a violation of the 14th Amendment’s prohibition on insurrectionists holding public office. The decision, reached by a 4 to 3 vote, concluded that Trump had engaged in insurrection on January 6, 2021. Subsequently, the Trump campaign was allowed to appeal the decision to the Supreme Court. Colorado has since reinstated Trump on the ballot pending the outcome of that appeal.
Trump was also removed from the Maine ballot by its Secretary of State for similar reasons, but his campaign has since appealed that decision as well.
The proposal, posted on the Libertarian National Committee’s public business list over the weekend, calls on the organization to petition the United States Supreme Court for a ruling reaffirming the right of any eligible voter to cast their vote for their preferred candidate. It is rooted in the historical concept that this right was absolute during the early years of the United States when government-issued ballots didn’t exist and voters were free to create their own ballots.
The language was initially drafted by Richard Winger, a lifelong Libertarian Party activist and a prominent advocate for ballot access most known for his work as the primary editor for the online journal, “Ballot Access News.” The full language, as shared to the Libertarian National Committee’s public list, reads as follows:
“In 1964 the US Supreme Court said in Wesberry v Sanders, “No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.”
In 1912 the Colorado Supreme Court said in Littlejohn ex rel Desch, “Every qualified elector shall have an equal right to cast a ballot for the person of his own selection, and that no act shall be done by any power, civil or military, to prevent it. Such is the mandate and spirit of the Constitution, and it thereby vests in the elector a constitutional right of which he cannot lawfully be deprived by any governmental power.”
The Libertarian National Committee calls on the U.S. Supreme Court to issue a ruling in Trump v Anderson that reinforces the right of any legal voter to vote for the candidate of his or her choice, a right that was absolute when the U.S. Constitution was written, because in the early years of the United States, there were no government ballots and every voter was free to create his or her own ballot.”
The language was shared to the party’s public business list by the Libertarian National Committee Secretary on Saturday evening for discussion purposes. Several members of the organization shared their thoughts on the matter, expressing support for a formal resolution based on the language proposed by Winger. Notable members in favor of a formal resolution include Chair Angela McArdle, Vice Chair Andrew Watkins, and at-large LNC member Adrian Malagon, among others.
“The Constitution doesn’t require conviction for a crime, nor does it provide a definition of insurrection.”
Not true. Amendment 14, Section places enforcement of Amendment 14 with Congress, and in 1948 they passed an Insurrection act (18 USC 2383) that explicitly covers insurrections as a criminal act, which requires full indictment, trail, and conviction under the 5th Amendment.
Note also that the 1/6/21 Riot was NOT an insurrection and nobody has ever been charged with insurrection from that day.
That doesn’t go into the “President is not an Officer of the United States” arguments. Reason discusses that at https://reason.com/volokh/2021/01/20/is-the-president-an-officer-of-the-united-states-for-purposes-of-section-3-of-the-fourteenth-amendment/ and also mentions the case Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010), which has Roberts explaining it (Dicta, Section III-B, paragraph 9).
But it should be noted that Section 3 lists Presidential Electors and not Presidents themselves because Presidents and Vice-Presidents aren’t actually on the ballot; their Electors are. It also specifies “hold” office, which is different than and chronologically downstream from running for or being elected to the office. One can run and be elected to an office and not hold it, which is why Section 3 of the 20th Amendment and Sections 3 and 4 of the 25th Amendment exist.
As far as the LNC weighing in on it, well, they concern is that if it can be done to him partisanly and unilaterally without due process, then it can be done to any candidate, including Libertarian candidates, and that’s a big problem.
The argument is over the primary ballot.
Filing an amicus, assuming they can find attorneys to write it, will cost $5000-$10,000 for printing the filing in acceptable form, plus other possible expenses. They could also organize a protest by piling the needed $1 bills in a heap, soaking it in gasoline, and igniting, which will do as much good, not to mention that the pillar of flame with be more suitable for cameras.
Does this mean they’re filing a friend of court brief?
As of right now Trump is on the ballot in CO, since the court there said their decision would be stayed if it was appealed. I think that Trump should likely remain on the ballot as a practical matter, but the issues here show the difficulties with simply saying “whatever the Constitution says, goes”. The Constitution doesn’t require conviction for a crime, nor does it provide a definition of insurrection. A bipartisan majority of Senators thought he was guilty of it, but not enough to convict. There have been conflicting rulings on whether the 14a is self-executing, although the Constitution has been assumed to be self-executing in other situations regarding candidate eligibility. It’s all a mess.
I’m not really sure what value the LNC weighing in on this is, but I have had concerns that forbidding Trump’s name based on his role in an event that he has not been convicted for would set a bad precedent for ballot access.