The justices face many questions as they review a case involving Section 3 of the 14th Amendment.
Until recently the biggest concern of Donald Trump and his supporters was how ballots in this year’s election would be counted, not whether Mr. Trump’s name would appear on them. Now Colorado and Maine have decided that the former president is ineligible to hold office, and the Supreme Court has agreed to intervene.
As a political matter, banning Mr. Trump from the ballot is shortsighted and deeply troubling. It disenfranchises his supporters in a race that polls show him leading. It advances the rigged-system and self-grievance narratives that are catnip to his base. And it’s hypocritical insofar as it undermines democratic norms to take down someone regularly accused by opponents of undermining democratic norms. Republican backlash is inevitable.
As a legal matter, however, Mr. Trump’s situation is more complicated. The U.S. Supreme Court has agreed to hear an appeal to last month’s 4-3 decision by the Colorado Supreme Court to exclude the former president from the state’s primary ballot on grounds that he engaged in insurrection on Jan. 6, 2021. Trump supporters believe that the high court’s conservative majority makes the case a slam-dunk in Mr. Trump’s favor. It’s likely that the justices will overturn the Colorado Supreme Court, but how they reach that decision is as important as what they decide.
That’s because the U.S. electoral system is decentralized in the extreme. Our national elections are structured on a state-by-state basis, and election laws vary. When it comes to absentee ballots, voter registration, felon disenfranchisement, same-day voting and myriad other issues, procedures vary from one state to another. Ballot access is no different, and the Supreme Court historically has tended to allow states to make their own rules.
Akhil Reed Amar, a Yale law professor and constitutional scholar, remarked in a recent podcast discussion that the court might opt for a minimalist ruling that defers to Colorado but doesn’t bind other states. It could decide that Mr. Trump was permitted to make his case for ballot access and lost, thus upholding the Colorado Supreme Court decision while still allowing other states with different ballot-access qualifications to go their own way.
What the court shouldn’t dodge, however, is its duty to provide some guidance on Section 3 of the 14th Amendment, a Civil War-era provision that bars from holding public office someone who has sworn an oath to defend the Constitution and then engaged in “insurrection or rebellion.” Colorado and Maine relied on the clause to exclude Mr. Trump from the ballot, but there’s wide disagreement over what it means and how it should be applied.
For starters, was Jan. 6 an insurrection and did Mr. Trump engage in it, or were his remarks that day protected by the First Amendment? Nor is it clear that Section 3 was meant to address anything other than the insurrection of 1861-65. Does it apply to other events, and does a disqualification written 150 years ago specifically to address the aftermath of the Civil War still apply today?
Mr. Trump’s lawyers insist that Section 3 doesn’t apply to the presidency, and some first-rate legal minds, including former Attorney General Michael Mukasey, are sympathetic to that view. No members of the Colorado Supreme Court were persuaded by that argument, but the trial judge in the case was. Nor is it clear whether the clause is “self-executing” or whether Congress must pass legislation to implement it. Federal law makes insurrection a crime, but Mr. Trump hasn’t been charged with that offense.
The Colorado Supreme Court cited a 2012 decision by Neil Gorsuch, one of Mr. Trump’s Supreme Court appointees, when he was a federal judge in Colorado. Judge Gorsuch upheld a decision by Colorado’s secretary of state to keep a naturalized citizen born in Guyana off the presidential ballot because he was ineligible to serve. Liberals are reading this to mean that Justice Gorsuch may favor disqualifying Mr. Trump. But knowing that Justice Gorsuch believes ineligible candidates shouldn’t be on the ballot tells us nothing about who he believes should be eligible.
If the Supreme Court wasn’t prepared to answer these questions, it likely wouldn’t have taken the case. Chief Justice John Roberts’s consensus-building skills will be challenged. All nine justices may agree that Mr. Trump should be on the ballot, but they may think so for very different reasons. A unanimous ruling on a case this important would be ideal, but some dissent might be inevitable.
No matter how the justices rule, millions of voters already have determined that the courts are playing an unwelcome role in the 2024 election. They believe that President Biden’s Justice Department has been loosed to go after his likely opponent in November. And they believe state efforts to keep Mr. Trump off the ballot are the backup plan. None of this is good for our democracy.
This piece originally appeared in The Wall Street Journal (paywall)
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Jason L. Riley is a senior fellow at the Manhattan Institute, a columnist at The Wall Street Journal, and a Fox News commentator. Follow him on Twitter here.
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