May it please the court – or not – justices will decide if Trump can run

First Colorado kicked former President Donald Trump off the state primary ballot for the 2024 presidential election. Then Maine did the same thing.

Meanwhile, California and some other states have declined to block Mr. Trump from running for president due to his role in the Jan. 6, 2021, Capitol riot.

Now this contentious issue will almost certainly land in the Supreme Court’s robed lap. High court justices are likely to soon have to decide whether the former president is barred from another try at the White House under Section 3 of the 14th Amendment, which prohibits those who have “engaged in insurrection” from holding federal or state elective office.

On Wednesday, Mr. Trump’s legal team asked the justices to overrule the Colorado Supreme Court and ensure he can appear on ballots across the United States.

Perhaps not since the Supreme Court’s 2000 Bush v. Gore decision, which effectively swung the presidency to George W. Bush, has the U.S. judicial branch faced such a politically momentous case. One of the lessons from 2000, say some legal experts, is that whichever way justices rule, it is important that they reach a decision quickly and that they avoid an arcane, complex ruling. 

We live in polarized times, and a decision either way will be challenged, but “if the reasoning is not thorough and clear and persuasive, it will give rise to questions of the legitimacy of the presidential election,” says Lawrence Solum, a professor at the University of Virginia School of Law.

What the 14th Amendment says

The 14th Amendment to the Constitution was ratified in 1868. It was drawn up in part to block former Confederates or Confederate sympathizers from regaining power through elective office.

Section 3 holds that no person shall be a senator or representative, or Electoral College elector for president, or hold any civil or military office under the federal government or any state, if they have sworn allegiance to the Constitution and then engaged in insurrection against the U.S.

In the years following the Civil War, Congress took the provisions seriously. The Senate refused to seat Philip Francis Thomas, a Maryland politician chosen as a senator by the state legislature, despite his generally pro-Union stance. His fault? He had given one of his sons $100 when the boy went off to join the Confederate army.

The amendment was rarely invoked after 1872, when Congress passed a general amnesty that restored political rights for former Confederates. But it remains the law of the land. Some constitutional scholars have promoted it as a means of dealing with a once and possibly future president they consider unfit for office.

Then on Dec. 19, the Colorado Supreme Court in a 4-3 ruling held that Mr. Trump is not eligible to be on the state’s primary ballot. A little over a week later, Maine’s top election official, Secretary of State Shenna Bellows, did the same thing. 

“I am mindful that no Secretary of State has ever deprived a presidential candidate of ballot access based on Section Three of the Fourteenth Amendment,” Ms. Bellows wrote. “I am also mindful, however, that no presidential candidate has ever before engaged in insurrection.”

Meanwhile, in December both California and Michigan kept Mr. Trump’s name on their primary ballots. Cases are still pending in numerous states.

On the Colorado ruling, Mr. Trump’s appeal to the Supreme Court joined one already filed by the state’s Republican Party. Ultimately the high court seems almost certain to decide the matter. Mr. Trump has also appealed the Maine ruling to the state’s top trial court.

The case will require the high court to consider a number of hard questions, says Rick Hasen, a professor at the University of California, Los Angeles School of Law and director of the Safeguarding Democracy Project. 

Some are purely legal, such as, is Mr. Trump covered by the Section 3 provision? After all, it states that it covers a number of elected offices, but does not explicitly mention the presidency.

Some are factual, such as, did Mr. Trump engage in insurrection? Colorado District Judge Sarah Wallace found that Mr. Trump, by inciting the Jan. 6 Capitol riot, had “engaged in insurrection.” But the former president’s defendants argue that he has not received the due process of a jury trial. 

Some are procedural, such as, who can resolve these questions? Does Congress have to pass a law laying out how enforcement of Section 3 should work?

“As this case makes its way to the Supreme Court, Trump has the advantage in that he only has to prevail on one of those [questions] ... in order to remain on the ballot,” says Professor Hasen.

Justices could take a number of paths to assemble a majority. They could rule narrowly on procedural grounds, or broadly address all the merits of the case, including the insurrection charge. For Chief Justice John Roberts, who has long been concerned about the Supreme Court’s institutional standing, one of the most important considerations may be to simply keep the court from dividing along strictly partisan lines.

It is important that the justices wrap up the issue as soon as possible, for both the political stability of the U.S. and the protection of the rights of Republican primary voters, according to Professor Hasen.

“They deserve to know whether the candidate they’re considering supporting is actually eligible to run for office,” he says.

Politics versus the law

Arcing over the legal questions regarding the 14th Amendment is a practical, political one: Is this effort an undemocratic way to attempt to protect democracy?

Spokespersons for the Trump campaign have called the Colorado and Maine decisions “partisan election interference” and “a hostile attack on American democracy.”

It is also a reason cited by Democratic Gov. Gavin Newsom of the deep-blue state of California to justify his reluctance to embrace efforts to keep Mr. Trump off the ballot.

“In California, we defeat candidates at the polls. Everything else is a political distraction,” he said last month.

It may indeed be an uncomfortable situation in this regard, say some legal experts. But the problem is, the 14th Amendment exists.

“Some will no doubt say that the voters should be the judges of Trump’s insurrection, but that is not what the Constitution says,” says Professor Solum.