Legal academics are divided on the new popular theory that former President Donald Trump can be removed from ballots under Section 3 of the Fourteenth Amendment. While I respect many of the academics who view this as a credible interpretation, I have long opposed it as textually and historically flawed. In addition to some exaggerated claims of precedent, I view the theory as one of the most dangerous in my lifetime. One thing, however, we agree upon: it is time for the federal courts to rule on this theory to bring clarity to the election. That may now occur in West Virginia where Attorney General Patrick Morrisey wants a federal court to throw out a lawsuit attempting to remove Donald Trump from the ballot in the state. What is most striking about the filing is the accusation of judge-shopping by advocates like John Anthony Castro in seeking to remove Donald Trump from the ballot in the state.
I have previously addressed the constitutional basis for this claim. It is, in my view, wildly out of sync with the purpose of the amendment, which followed an actual rebellion, the Civil War.
The 14th Amendment bars those who took the oath and then “engaged in insurrection or rebellion against the same.” It then adds that that disqualification can extend to those who have “given aid or comfort to the enemies thereof.”
The “disqualification clause” was written after the 39th Congress convened in December 1865 when many members were shocked to see Alexander Stephens, the Confederate vice president, waiting to take a seat with an array of other former Confederate senators and military officers.
Justice Edwin Reade of the North Carolina Supreme Court later explained, “[t]he idea [was] that one who had taken an oath to support the Constitution and violated it, ought to be excluded from taking it again.”
According to these experts, Jan. 6 was an “insurrection” and Trump gave “aid and comfort” to those who engaged in it by spreading election fraud claims and not immediately denouncing the violence.
Polls have shown that most of the public view Jan. 6 for what it was: a protest that became a riot. One year after the riot, CBS News mostly downplayed and ignored the result of its own poll showing that 76 percent viewed it for what it was, as a “protest gone too far.” The view that it was an actual “insurrection” was far less settled, with almost half rejecting the claim, a division breaking along partisan lines.
Nevertheless, Democrats have claimed that the 14th Amendment prevents Trump from running because he supported an “insurrection or rebellion.”
They have argued that this long dormant clause can be used to block not just Trump but 120 Republicans in Congress from running for office.
The lawsuit could offer a long needed judicial review and an avenue to the Supreme Court for a final ruling. Yet, what was most notable was this paragraph in the filing on the motives and means used by Castro:
“Plaintiff John Anthony Castro filed this lawsuit as part of a multi-state litigation effort that he dubs “Operation Deadlock.” John Anthony Castro (@realJohnACastro), X (Sept. 20, 2023, 2:17 PM), https://bit.ly/48GyE9y. Castro’s supposed operation involves filing suit after suit— roughly two dozen so far—seeking to disqualify President Donald Trump from running for election again. Castro will then “sidelin[e] and neutraliz[e] the influence of conservative judges” by “nonsuit[ing] those cases” that are not assigned to “Obama-appointed or Clinton appointed judges.” Katherine Fung, Donald Trump’s Lawyers Get Stretched Even Thinner, NEWSWEEK (Sept. 19, 2023, 11:22 AM), https://bit.ly/3S2a25B; see, e.g., Notice of Dismissal, Castro v. Henderson, No. 2:23-cv-00617 (D. Utah Sept. 27, 2023), ECF No. 14 (Castro dismissing his suit after it was reassigned to a judge appointed by President Trump); but see, e.g., In re Fieger, No. 97-1359, 1999 WL 717991 (6th Cir. Sept. 10, 1999) (affirming sanctions against attorney who had “dismissed [his] cases so that he could select the judge”). Castro evidently hopes these efforts will “completely bankrupt [President Trump] by next summer.” John Anthony Castro (@realJohnACastro), X (Sept. 27, 2023, 8:40 PM), https://bit.ly/45gxpLq.”
Castro is running for the Republican presidential nomination. Recently, the Supreme Court refused to hear one of Castro’s cases.
Castro has been open about forum and judge shopping to get liberal, Democratic judges to rule against Trump. Castro tweeted:
“The fight is far from being over. We’re going to get the liberal 9th Circuit to kick Trump off the ballot in Montana, Idaho, Nevada, and Arizona. Coupled with the 1st Circuit kicking him off the Maine ballot, there’s ZERO path to 270. The Supreme Court can deny to hear the case but appellate courts cannot. I’m still pursuing decisions in the liberal appellate courts and there’s a full blown trial scheduled for October 20 in New Hampshire and a bench trial in Arizona on October 31.”
I tend to favor broad standing rules, but Castro’s open effort to secure review from liberal, Democratic judges should offend not only these jurists but most Americans. Castro received a J.D. from the University of New Mexico and LLM from Georgetown University.
Courts have universally denounced judge shopping. Most, like the federal court in northern Illinois, denounce the practice: “No one should be able to manipulate the assignment system in order to determine in advance which judge will get a case where the assignment is by lot.”
Obviously “forum shopping” does occur. Lawyers will seek to file in the most favorable jurisdiction, including prosecutors. Yet, I have never seen a lawyer openly discussing the manipulation of filings in search of liberal judges to achieve a particular result. The filing is accusing Castro of actually withdrawing lawsuits when he receives a judge who is not reliably liberal.
Castro must realize that he is insulting these liberal judges and making this already novel challenge even more difficult. However, it is an example of using cases to appeal to the court of public opinion. Castro knows that such raw political moves will thrill many in this age of rage.
For advocates of the 14th Amendment theory, Castro could not be a worse figure to move this claim into the courts. He adds a noxious means to a novel theory to bar Trump from ballots. Of course, this is all being done by advocates who claim that they are defending democracy but denying the ability of others to vote for one of the leading candidates for the presidency.