On January 5, 2024, the Supreme Court granted certiorari in Trump v. Anderson. It will review the Colorado Supreme Court’s determination that presidential candidate Donald Trump should be excluded from the Colorado Republican presidential primary ballot because he is ineligible to serve as president of the United States. In reaching its decision, the Colorado high court cited Trump’s role in instigating the riot at the Capitol on January 6, 2021, and concluded that he violated Section 3 of the Fourteenth Amendment.
Section 3 bars those who took an oath to support the Constitution of the United States and later engaged in insurrection from holding any office under the United States. It was enacted in the aftermath of the Civil War as part of an effort to prevent a class of Confederates from returning to roles in federal or state government. This prohibition can be lifted by Congress by a two-thirds vote.
The provision saw some use in the aftermath of the Civil War, but Congress later passed amnesty legislation that limited its effectiveness. It has been mostly untouched until the last couple of years, when challenges arose to candidates or officeholders based on their roles in events surrounding January 6, 2021. One action in New Mexico successfully removed a county official who had been convicted of trespassing at the Capitol.
The Colorado case, however, is the first time a candidate has been excluded from the ballot under Section 3. Part of this is due to the fact that states did not begin to print ballots until the end of the 19th century, after Section 3 fell into disuse. But the exclusion of Trump is a significant legal event—and even more significant given that he is the frontrunner for a major party’s candidacy for the presidency, and a former president himself. (The Secretary of State of Maine reached a similar conclusion regarding Trump, and that decision is being appealed in state court.)
The Supreme Court asked for expedited briefing in the case and will hear oral argument February 8, 2024. The Court has an opportunity to offer clarity before too many voters have weighed in, and well ahead of the general election.
The issues are numerous and complicated, but for purposes of this blog post, I’ll highlight five of the major ways the Court could address the questions in dispute.
Option 1: A very narrow decision specific to Colorado or specific to the primaries. The Court could conclude that Colorado so deviated from its interpretation of state law in taking the case that it breached the federal Constitution. Or it could find that in a presidential primary, the interests of the state are simply different in kind, and the Court could reach a decision in this case while deferring questions about the general election. Such narrow holdings, however, seem unlikely. This case is not a good vehicle to address issues like these, and it seems that the Court has requested expedited review to reach a decision with a broader reach.
Indeed, Trump’s victories thus far in similar cases have been mostly on narrow procedural grounds—federal courts lack jurisdiction to hear the case, state courts lack jurisdiction to hear a challenge in a presidential primary, and so on. His losses—in both Colorado and Maine—have come when fact-finders get to the merits, and the Supreme Court is likely to look to the merits, too.
Option 2: An approach specific to the circumstances of January 6, 2021, concluding that Trump should appear on the ballot. This approach might hold that January 6, 2021 was not an “insurrection,” that Trump’s speech and conduct ahead of the Capitol rioting was not an “engage[ment]” in insurrection, or that Trump’s behavior is protected by the First Amendment. This path seems less likely, as it seems probable that the Court would avoid any fact-intensive inquiries, which seem much more like diving into the political thicket.
Option 3: Deference to Congress in some fashion. The Court could find that Congress needs to pass implementing legislation to give effect to Section 3, or that it is wise for Congress to have the first opportunity to ascertain a candidate’s eligibility or decide whether to lift the disqualification. There is some peril in this path. Kicking the can down the road leaves significant political uncertainty among voters and invites potential crises after the election. But the Court could hew its opinion in a way that constrains Congress’s ability to create mischief later—a challenging opinion to write, and a dare to the legislative branch.
Option 4: A decision that exempts Trump from coverage of Section 3 of the Fourteenth Amendment, and perhaps few others. Defining what an “office” is, or who is an “officer” who previously took an oath, are extremely narrow constructions of the text of Section 3 that might be interpreted to exclude Trump from coverage. But the battle over interpreting the drafting and ratification history of the amendment, or parsing with precision these terms, faces its own challenges.
Option 5: Affirm the Colorado Supreme Court on the merits and invite other states to exclude Trump. Such a holding would be a monumental one, in both legal and political terms. It would mean the challengers to Trump’s candidacy win on every element of their claim, in itself a major challenge for any challenger bringing such a case. It would place the Republican Party and voters in turmoil in the months ahead, and it would yield unknown popular consequences.
There are other potential paths forward that focus on issues specific to or unique to election law or ballot access. And it is hard to predict where the Court goes. But robust briefing from the parties and amici in the weeks ahead will illuminate how the parties envision the path forward in this case.
One final note. The overwhelming focus of legal analysis in the case so far has been twofold. The first focus has been originalist in nature. Briefs, articles, and analyses overwhelmingly focus on original public meaning, on historical understanding, on how texts were understood at the time they were ratified. The second focus has been consequentialist. Parties have raised the specter of what might happen if a candidate were excluded, or what might happen if the Court fails to give effect to the plain terms of the Constitution, or what might happen next if the decision is allowed to stand or fall. These themes are likely to pervade the public commentary in the weeks ahead.
Disclosure: Professor Muller filed an amicus brief in support of neither party in the Colorado Supreme Court in Anderson v. Griswold.
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