On January 5, an amicus brief was filed in the U.S. Supreme Court in Trump v Anderson, 23-719 by twenty-five states.  The brief makes some arguments that haven’t been made by others who have litigated the Trump ballot access case.

The brief’s main point is that Congress, not state courts, is responsible for determining whether an individual is an insurrectionist.  It says that if Trump is an insurrectionist because of his actions on the days leading up to and including January 6, 2021, then on January 6, 2021, he should have immediately ceased to be president.  Section three says insurrectionists cannot “hold” the office, and says nothing about elections.  So, logically, if Trump became an insurrectionist no later than January 6, 2021, at that point he could not legally continue to serve as president, and Mike Pence should have been president between January 6, 2021, and January 20, 2021.  Only Congress could have made that decision.  Of course, this is only a small part of the brief.

The brief contains many precedents from “birther” lawsuits filed against putting Barack Obama on various ballots.  These little-known court decisions always decided that it is not up to state elections officials to decide whether Obama met the “natural-birth” requirement.  The plaintiffs in these cases wanted to present evidence about birth certificate documents, but the courts weren’t interested.  Some of the “birthers” are named in the brief, in their capacity as plaintiffs in “birther” lawsuits, such as Orly Taitz, Markham Robinson, Michael Voeltz, Charles Kershner, and others.  Robinson was state chair of the American Independent Party of California at the time he sued.

Although the amicus is on behalf of twenty-five states, it seems to have been initiated by state officials from Indiana and West Virginia.