If we want to ensure a free and fair election and a peaceful transition of power, the time for decision is now.
Donald Trump on Wednesday filed his anticipated petition for certiorari, asking the Supreme Court to reverse the Colorado supreme court and restore him to that state’s ballot. There is a compelling case for the Court to take this case, and to provide a uniform decision nationwide at the earliest possible moment. Trump’s filing increases the already-high likelihood that the Court will (however reluctantly) weigh in. It also raises the stakes of that decision.
As I noted when the Colorado Republican Party filed its petition, it was limited in what it asked the Court to decide, presenting three discrete questions:
1. Whether the President falls within the list of officials subject to the disqualification provision of Section Three of the Fourteenth Amendment?
2. Whether Section Three of the Fourteenth Amendment is self-executing to the extent of allowing states to remove candidates from the ballot in the absence of any Congressional action authorizing such process?
3. Whether the denial to a political party of its ability to choose the candidate of its choice in a presidential primary and general election violates that party’s First Amendment Right of Association?
The last of those wouldn’t even determine whether Trump is eligible to be president, or even necessarily whether he is eligible to appear on state ballots in the general election. It’s just trying to get him through the primary. The Colorado GOP didn’t ask for a final determination of eligibility for office. Trump does.
His petition frames a single question presented: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?” Normally, if your question presented is “did the lower court err?” you have pretty close to a 100 percent chance of cert being denied, because the Court sits to resolve national questions of law and not just to resolve individual cases. But this case itself will recur in many states, so a broad framing of the question presented (the QP, in SCOTUS lingo) allows the Court to address any legal issue that might resolve the case.
That includes the merits. But it also includes an argument that would recreate the conditions that led to January 6.
There are five arguments teed up by the Trump petition. Consider them in turn. They are schizophrenic in offering the Court, on the one hand, opportunities to finally settle the question, and on the other hand, ways to kick the can down the road that would amplify opportunities for this election to be settled by force or fraud rather than law.
First, the petition argues that “Congress — not a state court — is the proper body to resolve questions concerning a presidential candidate’s eligibility.” There is some judicial support for this theory, and the petition cites lower-court cases declining to rule on “Birther” arguments raised against Barack Obama, John McCain, and Ted Cruz. There is some force to the idea that the national legislature, having reserved to itself the power to decide how Section 3 of the 14th Amendment might be enforced and when it could be waived, is the best place to settle these questions. It assumes, contrary to decisions around the time of the framing of the 14th Amendment, that decisions about disqualification can be made at the state level, although there is certainly an argument that the role of Congress in a presidential election is unlike anything in other American elections. But deferring the issue to Congress means holding the presidential election first, and only deciding afterward whether the people’s choice can actually assume the office. That would place an enormous target on the backs of Congress, and we saw on January 6 how badly that can go.
Second, the petition raises the argument that Section 3 doesn’t apply to the presidency. I don’t buy this argument, but it’s obviously one the Court ought to resolve, and if it rules in Trump’s favor, that ends this issue.
Third, the petition argues that Trump did not engage in insurrection, and that January 6 was not an insurrection. As I have written at length (see here and here) I think the proper resolution of this issue is that Trump did not actively engage in the insurrection, even if January 6 qualifies as one. The Colorado GOP didn’t raise this issue, but if Trump wins on this at the Supreme Court, he wins on it everywhere. The pitfall is that the Court may not actually wish to go beyond laying out clear legal rules to actually applying them to the factual record, especially if the justices (Chief Justice John Roberts in particular) feel that the Colorado case didn’t involve a full and fair trial.
Fourth, the petition argues that the Electors Clause of Article II was violated by the Colorado courts violating state law. This is tangled with the fifth challenge raised by arguing that state law doesn’t permit the Colorado courts to disqualify a candidate who is allowed to appear on the ballot, but not to hold the office (more on that below). It also argues — as the three dissenters did in the Colorado Supreme Court — that the Colorado courts had violated their own statutory deadlines. This raises exactly the Bush v. Gore Article II question the Court did not quite settle last spring in Moore v. Harper: When has a state court so flouted its own rules as to deny the state legislature its proper role in charge of making rules for selecting presidential electors? But if the Supreme Court rules in Trump’s favor on the narrow hearing-deadline issue, that would be of no use to him or anybody else in resolving ballot challenges in other states.
Fifth, the petition argues that Section 3 only prevents Trump — if disqualified — from holding the office of president, not from being a candidate for it or being elected to it. But a ruling in his favor on that ground raises the same issues as kicking the can to Congress: It puts the ultimate decision-maker in the position of potentially denying him the presidency only after the American people have elected him to it.
Trump’s incentives here are not necessarily those of the best interests of the American system of law and constitutional democracy. True, there is a case for judicial modesty in delaying decision on Trump’s eligibility if we believe that the voters will do away with him on their own. But what if they don’t? Trump would prefer to defer decision as long as possible, knowing that at each stage of the process — winning early primaries, winning the nomination, winning the election — the popular pressure as well as the implicit threat of violence makes it ever harder for political actors or courts to rule against him even if they sincerely believe that the law requires doing so.
Nobody should want America’s chief magistrate selected by such considerations. The Court should take the case and issue a ruling that makes it clear one way or another — Trump can be president, or he cannot — before we get too far into the balloting. That’s a profoundly unpleasant duty, but it’s what we have a Supreme Court for. We select justices for due modesty in avoiding decisions they ought to let others decide, and for fidelity to text when deciding them. But courage also matters: Sometimes, some things are your job to decide. This is one of those, and if we want to ensure a free and fair election and a peaceful transition of power — things Americans have long taken for granted, and maybe no longer do — the time for decision is now.