From an amicus brief by Prof. Ned Foley, Ben Ginsberg, and Prof. Rick Hasen in Trump v. Anderson; for more on the amici, see the end of the post:
Amici often do not see eye to eye on matters of law or policy. But they join together in this brief to make a single, urgent point: A decision from this Court leaving unresolved the question of Donald Trump's qualification to hold the Office of President of the United States under Section 3 of the Fourteenth Amendment until after the 2024 election would risk catastrophic political instability, chance disenfranchising millions of voters, and raise the possibility of public violence before, on, and after November 5, 2024. And the grounds for avoiding the merits are not credible: Colorado manifestly had the authority to determine Mr. Trump's legal qualification for the office he seeks, and this Court has jurisdiction to review that federal-law decision on its merits.
To punt on the merits would invite chaos while risking great damage to the Court's reputation and to the Nation as a whole. The country is more polarized today than at any other time in living memory—certainly more than in December 2000, when this Court last decided a case with a direct impact on the outcome of a presidential election. Controversy over the 2020 election led millions of Americans to doubt the integrity of the electoral system and ultimately culminated in the storming of the U.S. Capitol on January 6, 2021. Political tensions have not eased in the time since. Quite the opposite: political discourse has stoked further public skepticism of the electoral system since January 2021. Amici thus file this brief, not only to demonstrate that the Court can reach the merits of Mr. Trump's qualification under Section 3, but that it should do so, or else risk political instability not seen since the Civil War.
The possible scenarios if the Court fails to resolve the Section 3 question once and for all are alarming. If Mr. Trump wins an electoral-vote majority, it is a virtual certainty that some Members of Congress will assert his disqualification under Section 3. That prospect alone will fan the flames of public conflict. But even worse for the political stability of the Nation is the prospect that Congress may actually vote in favor of his disqualification after he has apparently won election in the Electoral College. Neither Mr. Trump nor his supporters, whose votes effectively will have been discarded as void, are likely to take such a declaration lying down.
Even if Mr. Trump did willingly stand aside, it is wholly unclear who would be inaugurated as President on January 20, 2025—would it be Mr. Trump's running mate, pursuant to the Twentieth Amendment? Would it be Mr. Biden, pursuant to a Twelfth Amendment election in the House? Or would it be some alternate candidate thrown into the mix in the heat of the political battle? The chance that there would be no clear answer come Inauguration Day 2025—and that the country thereby would be thrown into a possibly catastrophic constitutional crisis—is disturbingly high….
Amici take no position on the question whether Mr. Trump is disqualified from the presidency under Section 3 of the Fourteenth Amendment. Reasonable arguments can be made on both sides of that question, and those issues are amply briefed by the parties and other friends of the Court. Amici offer their views here for a more basic point: The Court has the power to resolve the question presented, and it must do so now….
