The U.S. Supreme Court will chart the nation’s political future as it confronts a potentially stark choice over efforts to remove Donald Trump from this year’s presidential ballot for trying to overturn his 2020 election loss.
The court’s options include putting the kibosh on challenges to Trump’s candidacy with a ruling that keeps him on the ballot nationwide. Under another scenario, the court rules against the former president and paves the way for a year of unprecedented constitutional turbulence.
Either outcome is plausible as the justices weigh calls from both sides to review a Colorado Supreme Court ruling that said Trump forfeited his right to run again by engaging in an insurrection. The ruling, which said Trump incited the Jan. 6 Capitol riot, was the first ever to invoke the Constitution’s insurrection clause against an ex-president.
In an appeal filed late Wednesday, Trump urged the high court to declare that he didn’t take part in an insurrection. He and the Colorado Republican Party also say the clause, part of the post-Civil War 14th Amendment, doesn’t apply to presidents and can’t be enforced unless Congress acts first.
If the court backs Trump on any of those issues, “that ends it,” said Michael Dorf, a constitutional law professor at Cornell Law School. “Then eligibility challenges everywhere dissolve, and he’s on the ballot.”
The case has the potential to rival Bush v. Gore, the divided Supreme Court ruling that sealed the 2000 presidential election for Republican George W. Bush after a five-week deadlock over Florida ballot recounts. The high court since then has grown even more conservative, in large part because of Trump’s three appointees. It’s also grown more polarizing amid blockbuster rulings and ethics controversies.
Colorado Model
A ruling against Trump would open a complicated new chapter in the fight, creating a model for other states interested in banning Trump. Maine’s secretary of state has already declared the former president ineligible, prompting a lawsuit from the ex-president.
Courts in Michigan, Minnesota and Florida are among those that turned away 14th Amendment challenges, but cases are pending in several other states, including Wisconsin, Oregon and New Hampshire. A Supreme Court decision backing the Colorado exclusion could recharge the effort nationwide, including in swing states crucial for Trump’s election prospects.
Trump told the high court Wednesday that the Colorado Supreme Court ruling would “likely be used as a template to disenfranchise tens of millions of voters nationwide.”
Trump’s absence from some primary ballots wouldn’t preclude him from becoming the Republican nominee, or even being elected on Nov. 5. The latter prospect — an Election Day victory for a candidate the Supreme Court has declared ineligible — would create a dizzying chain of unknowns, starting with the situation that would face Congress when it meets on Jan. 6, 2025, to count the electoral votes.
“If you are not eligible to serve in the office, Congress might not count the votes for you,” said Derek Muller, a University of Notre Dame law professor who specializes in election law. “So there’s a major question about what happens on Jan. 6.”
Even if Trump were to win a majority of electors when Congress convenes, he would still face questions about his ability to take the oath two weeks later on Inauguration Day. Congress could override the Supreme Court decision, but doing so would require an unlikely two-thirds vote. Under the Constitution’s Twentieth Amendment, if the president-elect “shall have failed to qualify,” the vice president-elect will serve as acting chief executive.
“That’s a mess on Jan. 20,” Muller said.
Middle Ground
The Supreme Court could instead seek out a middle ground, said Wendy Weiser, who heads the democracy program at New York University’s Brennan Center for Justice. The justices could “kick the can down the road” by agreeing with state courts in Michigan, Minnesota and Florida that the insurrection clause doesn’t apply to primary ballots, she said. That would mean additional proceedings should Trump win the GOP nomination.
In a brief filed late Wednesday, Republican Senator Steve Daines and the National Republican Senatorial Committee offered a variation of that option, arguing that the insurrection clause imposes a restriction on holding office, not on running for office. The argument would mean that Trump could appear even on general election ballots without the Supreme Court having to say whether he had run afoul of the insurrection clause.
Daines also suggested the Supreme Court could stop short of hearing arguments and instead tell the Colorado court to reconsider the issue.
Trump’s appeal also raised Colorado-specific issues that might not apply to other states. He faulted a state trial judge, which held a five-day trial, for what he said was a “rushed” process. And Trump said the judge disregarded state law to such an extent that the ruling violated the U.S. constitutional provision governing the appointment of electors.
“There are a lot of different ways this can go, and a lot of different levels of finality of the decision,” Weiser said.
A final possibility is that the Supreme Court could rule decisively for Trump – ensuring he will be on the ballot nationwide — while criticizing his effort to overturn his election loss, said Kent Greenfield, a constitutional law expert and professor at Boston College Law School.
“I can imagine the court trying to clothe itself in some bipartisan criticism and critique of his actions” culminating with the Capitol riot, he said. “And still finding he has access to the ballot.”
