Yesterday afternoon, after about 3 hours of deliberation, a New York jury returned its verdict in the Carroll I trial. They ordered that Trump pay Carroll $18.3 million of compensatory damages, and a whopping $65.0 million in punitive damages. These amounts are incremental to the $4.7 million of compensatory damages and $0.3 million of punitive damages that a different New York jury had awarded Carroll in the Carroll II trial last May.

Often these types of punitive damages awards are symbolic, in that the defendant doesn’t have the ability to pay the amount awarded. Here, by contrast, Trump apparently has sufficient wealth with which to pay these damage awards, assuming they are sustained on appeal. However, it is less clear what his current liquidity position is. After appealing the previous verdict, Trump had placed $5.5 million in a court-controlled escrow account. It is not yet known whether he will place something like $83.3 million in a similar escrow account, or whether instead he will post an appeal bond. And, of course, there is a strong possibility that next week he will face even larger monetary penalties at the conclusion of the Trump Org fraud trial.

In other news yesterday, Norma Anderson and the other five CREW-supported Colorado voters filed their merits brief with SCOTUS in Trump v. Anderson, five days ahead of the deadline. Also filed yesterday was an amicus brief mentioned in the Anderson brief, from 25 history professors. Note that there are actually three sets of respondents in the case: the Anderson/CREW group; Jena Griswold, the Colorado Secretary of State; and the Colorado Republican State Central Committee. We can still expect to see a separate brief from Griswold, who is seeking divided argument, and some unknown number of amicus briefs in support of the decision below. The Colorado Republicans, despite technically being a respondent, are of course on Trump’s side and had actually filed their merits brief the day before Trump.

The Anderson merits brief spends the bulk of its time arguing two of the four points that I’d laid out in a previous post: that Trump engaged in insurrection against the Constitution, in the sense of Section 3 of the 14th Amendment; and that Section 3 applies to insurrectionist presidents. As such, their brief repeatedly refers to Trump as an “oath-breaking insurrectionist,” which I imagine he loves. The Anderson brief also argues that the “is Section 3 self-executing?” question is a red herring, because what is really at issue here is whether a state can take action under its own ballot access rules to enforce Section 3. As such, they argue that the Colorado Republicans “must prove not only that Section 3 is not “self-executing,” but that state laws to “execute” it are somehow unconstitutional.”

This last point raises the prospect that, as much as the nation might be better served with a definitive national solution to the “is Trump eligible to be President or not” question, such an answer may not be for SCOTUS to provide. Instead, it may really be the case that, given our federalist system of government, the legally correct outcome is that each state gets to decide for itself whether or not Trump should be on that state’s 2024 Presidential ballot.

This point of view was articulated more explicitly in an amicus brief filed several days ago by two legal scholars, Yale law professor Akhil Amar and his younger brother Vikram Amar (now at UC Davis). They argue explicitly that judicial minimalism requires “a fifty-state solution in which different states may properly have different procedures and protocols”, rather than a ruling that “imposes this Court’s views on all fifty states.” In the Amars’ view:

“Some states may carefully police ballot access even in primary elections; others will focus more on the general ballot. Still others may wait until vote tabulation begins; and yet another cluster of states may defer to Congress as the last actor when electoral-college ballots are unsealed. Different states may have different standards and modes of proof… States can have even stricter standards than Section Three provides, so long as such standards meet global federal constitutional principles (free speech, due process, racial equality, etc.) as construed by this Court, and state constitutional requirements as understood by the states’ supreme courts.“

The Amars also assert that, irrespective of what happens in this lawsuit, “Congress on Judgment Day [i.e., January 6, 2025] can refuse to count electoral votes that it alone deems improper.” As precedent, they discuss the Presidential Election of 1872. Grant won re-election in a landslide against Horace Greeley, who had won 66 electoral votes on election day but then died in late November, before the Electoral College voted. All but three of his electors ended up casting their votes for other individuals. Congress rejected the votes of the 3 remaining Greeley electors, on the grounds that Greeley was constitutionally ineligible to hold office, being dead.