Supreme Court鈥檚 ruling keeps Trump on state ballots. Then what?
Loading...
Former President Donald Trump鈥檚 name will stay on the Colorado primary ballot.聽
The Supreme Court on Monday ruled the state cannot strike him from its list of聽presidential candidates on grounds he engaged in insurrection by trying to overturn聽the 2020 election.
For all practical purposes, the unanimous ruling ends state-by-state attempts to rule聽Mr. Trump ineligible for the White House under a long-dormant clause of the 14th聽Amendment that bars insurrectionists from public office.
Why We Wrote This
The U.S. Supreme Court moved unanimously in deciding that states can鈥檛 kick Donald Trump off ballots 鈥 and in effect left voters to decide whether the former president鈥檚 2020 election moves are disqualifying.
But some legal experts say that the decision left important aspects of the issue聽unresolved as to how they apply to politics today. In particular, they say, it did not聽clarify whether or how Mr. Trump鈥檚 eligibility to hold office could still be聽challenged under the 14th Amendment if he wins.
鈥淭hey didn鈥檛 say it wasn鈥檛 an insurrection, he didn鈥檛 engage in it, it doesn鈥檛 apply to聽the president 鈥 those things that would have clearly resolved it,鈥 says Gerard聽Magliocca, professor at the Indiana University School of Law.
Ruling lands one day before state primaries
The high court justices fast-tracked their consideration of the Colorado case, Trump v.聽Anderson. They released their opinion one day before Super Tuesday, when聽Colorado and a number of states hold their primaries.
The case stemmed from a challenge brought by a number of Colorado voters who聽asked the state to block Mr. Trump from the primary ballot under the 14th聽Amendment鈥檚 Section 3. That clause bars from public office those who have taken an oath to support the Constitution and then engaged in insurrection or rebellion 鈥渁gainst the same.鈥
The Colorado Supreme Court eventually held that Section 3 did apply to the聽former president 鈥 and that he had engaged in insurrection against the United聽States.
Mr. Trump then asked the U.S. Supreme Court to take up the case. One of the primary聽arguments his lawyers made was that Section 3 does not mention the presidency,聽and so does not apply to it. They also argued that Mr. Trump did not engage in insurrection.聽Monday鈥檚 ruling was silent on both of these questions.
The per curiam, or unanimous, opinion held that states can indeed disqualify state officials they聽deem insurrectionist. But 鈥渟tates have no power under the Constitution to enforce聽Section 3 with respect to federal offices, especially the Presidency,鈥 the opinion聽said.
State enforcement of Section 3 could result in a 鈥減atchwork鈥 situation, with an聽evolving electoral map that could dramatically change the behavior of voters,聽parties, and electoral results, according to the opinion.
鈥淣othing in the Constitution requires that we endure such chaos,鈥 the opinion held.
鈥淧er curiam鈥 means, specifically, a unanimous ruling meant to reflect the opinion of the聽court as a whole and not the ideas or work of a single judicial author. In聽essence, the decision was 9-0.
That unanimity on the central point of the case is the biggest takeaway from today鈥檚 court聽action, says Josh Blackman, professor at the South Texas College of Law in Houston.聽鈥淎ll nine justices agree this was a terrible idea,鈥 he says.
What does 鈥渦nanimous鈥 mean?
But some unanimous opinions are more unanimous than others, says Alison聽LaCroix, professor at the University of Chicago Law School.
Indeed, all nine justices聽agreed that Mr. Trump should appear on the Colorado ballot 鈥 but four of them, in聽separate opinions, said the other five had gone beyond what was necessary in discussing聽limitations on how the insurrection clause might be enforced.
鈥淚t鈥檚 a unanimous opinion by any meaningful definition of that term, but it is not聽the court speaking with one voice, and that is significant,鈥 says Professor LaCroix. The per curiam decision said that the responsibility for enforcing Section 3 against聽federal officeholders and candidates rests with Congress, not the states.
Specifically, it said that the disqualification clause at the national level can be聽enforced only through federal legislation, not through a federal court challenge or other nonlegislative action by Congress.
Justice Amy Coney Barrett, a Trump appointee, said in a brief concurring opinion聽that the majority had gone too far in discussing the 鈥渃omplicated question鈥 of聽congressional enforcement.
The liberal trio of Justices Sonya Sotomayor, Elena Kagan, and Ketanji Brown Jackson were sharper in their criticism, saying that the per curiam聽opinion 鈥渟huts the door鈥 on other means of federal enforcement.聽鈥淲e cannot join an opinion that decides momentous and difficult issues聽unnecessarily,鈥 they wrote.
One problem is that simply saying Congress needs to pass legislation to enforce聽Section 3 is vague, and it does not define what counts as legislation, says Professor Magliocca.
Does existing legislation, such as the Electoral Count Reform Act, count? Would聽congressional action in a joint session be ruled out?
鈥淚n effect, there are these sloppy statements in the majority opinion that don鈥檛 need聽to be there, and it鈥檚 confusing,鈥 he says. 鈥淚 don鈥檛 think the four understand what the聽five are trying to say.鈥
Some experts worry about potential turmoil聽in the case of a Trump victory. What would happen if Democrats in Congress object to the counting of Electoral College votes for Mr. Trump, saying he is constitutionally ineligible for office?
After all, in Monday鈥檚 ruling the Supreme Court did not rule that Section 3 of the聽14th Amendment did not apply to Mr. Trump. In its ruling, the Colorado Supreme Court held that Mr. Trump engaged in聽insurrection when he summoned supporters to Washington in advance of Jan. 6, 2021, and encouraged them to disrupt the congressional certification of President Joe聽Biden鈥檚 Electoral College votes.
Monday鈥檚 per curiam Supreme Court opinion was silent on the matter.
鈥淭he court decided that [Mr. Trump鈥檚] innocence [or guilt] was not relevant,鈥 says Mark Graber, professor at the University of Maryland School of Law.