If there was one lesson to be learned from Bush v. Gore and its impact on the Supreme Court’s credibility, it is that the court should not decide presidential elections. That job belongs to the people: in the case of Donald Trump, to voters and juries. What that means in practice is that the court needs to find a way to decide the two cases before it now to preserve the rights of voters to choose who to vote for, and of a jury to decide whether Donald Trump is guilty of conspiring to incite an insurrection. Democracy has to win out.
The path forward becomes straightforward. The court cannot allow the states the power to disqualify Trump from appearing on the ballot as the Republican nominee for president. We cannot have a result that allows the states to deny voters, and the Republican Party, the right to nominate the candidate they seem to be intent on choosing. The question in the Colorado case is not where the court will come out, but only how they will get there.
The most likely path is to emphasize the associational rights of voters and of the Republican Party. The First Amendment rights of voters are sacrosanct. And while political parties are nowhere mentioned in the Constitution, the caselaw around the presidential nominating process grants supremacy to the political parties in structuring the rules. The parties control the delegate selection process and set the rules for selecting a nominee.
The way not to get there would be for the Supreme Court to take it upon itself to decide that Trump was not guilty of inciting an insurrection. To rely on that ground would be to usurp the role of the jury in the criminal trial that Trump should face sooner, not later. Trump has appealed the unanimous D.C. Circuit opinion rejecting his claim to absolute immunity for crimes committed while he was president.
