Supreme Court’s ruling keeps Trump on state ballots. Then what?

Former President Donald Trump’s name will stay on the Colorado primary ballot. 

The Supreme Court on Monday ruled the state cannot strike him from its list of presidential candidates on grounds he engaged in insurrection by trying to overturn the 2020 election.

For all practical purposes, the unanimous ruling ends state-by-state attempts to rule Mr. Trump ineligible for the White House under a long-dormant clause of the 14th Amendment that bars insurrectionists from public office.

But some legal experts say that the decision left important aspects of the issue unresolved as to how they apply to politics today. In particular, they say, it did not clarify whether or how Mr. Trump’s eligibility to hold office could still be challenged under the 14th Amendment if he wins.

“They didn’t say it wasn’t an insurrection, he didn’t engage in it, it doesn’t apply to the president – those things that would have clearly resolved it,” says Gerard 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. Anderson. They released their opinion one day before Super Tuesday, when Colorado and a number of states hold their primaries.

The case stemmed from a challenge brought by a number of Colorado voters who asked the state to block Mr. Trump from the primary ballot under the 14th Amendment’s 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 “against the same.”

The Colorado Supreme Court eventually held that Section 3 did apply to the former president – and that he had engaged in insurrection against the United States.

Mr. Trump then asked the U.S. Supreme Court to take up the case. One of the primary arguments his lawyers made was that Section 3 does not mention the presidency, and so does not apply to it. They also argued that Mr. Trump did not engage in insurrection. Monday’s ruling was silent on both of these questions.

The per curiam, or unanimous, opinion held that states can indeed disqualify state officials they deem insurrectionist. But “states have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency,” the opinion said.

State enforcement of Section 3 could result in a “patchwork” situation, with an evolving electoral map that could dramatically change the behavior of voters, parties, and electoral results, according to the opinion.

“Nothing in the Constitution requires that we endure such chaos,” the opinion held.

“Per curiam” means, specifically, a unanimous ruling meant to reflect the opinion of the court as a whole and not the ideas or work of a single judicial author. In essence, the decision was 9-0.

That unanimity on the central point of the case is the biggest takeaway from today’s court action, says Josh Blackman, professor at the South Texas College of Law in Houston. “All nine justices agree this was a terrible idea,” he says.

What does “unanimous” mean?

But some unanimous opinions are more unanimous than others, says Alison LaCroix, professor at the University of Chicago Law School.

Indeed, all nine justices agreed that Mr. Trump should appear on the Colorado ballot – but four of them, in separate opinions, said the other five had gone beyond what was necessary in discussing limitations on how the insurrection clause might be enforced.

“It’s a unanimous opinion by any meaningful definition of that term, but it is not the court speaking with one voice, and that is significant,” says Professor LaCroix. The per curiam decision said that the responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress, not the states.

Specifically, it said that the disqualification clause at the national level can be 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 that the majority had gone too far in discussing the “complicated question” of 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 opinion “shuts the door” on other means of federal enforcement. “We cannot join an opinion that decides momentous and difficult issues unnecessarily,” they wrote.

One problem is that simply saying Congress needs to pass legislation to enforce 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 congressional action in a joint session be ruled out?

“In effect, there are these sloppy statements in the majority opinion that don’t need to be there, and it’s confusing,” he says. “I don’t think the four understand what the five are trying to say.”

Some experts worry about potential turmoil 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’s ruling the Supreme Court did not rule that Section 3 of the 14th Amendment did not apply to Mr. Trump. In its ruling, the Colorado Supreme Court held that Mr. Trump engaged in insurrection when he summoned supporters to Washington in advance of Jan. 6, 2021, and encouraged them to disrupt the congressional certification of President Joe Biden’s Electoral College votes.

Monday’s per curiam Supreme Court opinion was silent on the matter.

“The court decided that [Mr. Trump’s] innocence [or guilt] was not relevant,” says Mark Graber, professor at the University of Maryland School of Law.