The Supreme Court Keeps Donald Trump on the Ballot

The Supreme Court has ruled that Colorado cannot keep Donald Trump from running for the Republican nomination for President because of his role in the events of January 6th. That bottom-line decision is per curiam—or by the full court—and unanimous, with both liberal and conservative Justices agreeing. It comes just in time for the Colorado primary, on Tuesday. Indeed, the Court found that the idea that Colorado, or any individual state, would have such a power “is simply implausible.” The ruling in the case, Trump v. Anderson, thus puts an end to one dragged-out, distracting, and ultimately unproductive fight. But it also opens up new battles—perhaps more than the Justices may have reckoned with. And a concurrence by the three liberal Justices adds a dissonant note to what might otherwise have been a moment of rare harmony.

Colorado courts had relied on Section 3 of the Fourteenth Amendment, which deals with disqualifying people who have been officeholders—specifically, those who had previously taken an oath to support the Constitution—who engaged in insurrection from holding any office “under the United States, or under any State.” Section 3 was ratified in 1869, in the wake of the Civil War, and was originally aimed at Confederates. The case had been brought by a group of Republican and unaffiliated Colorado voters, who prevailed in a 4–3 ruling in the state’s Supreme Court. The U.S. Supreme Court’s key finding in overturning the state-court ruling was that “States have no power under the Constitution to enforce Section 3 with respect to federal offices, especially the Presidency.” The key word is “federal”—the Supreme Court also ruled that states can disqualify insurrectionists from holding state offices. Notably, the Court offered no opinion on whether Trump engaged in insurrection.

There are bound to be big fights ahead about just how states should go about using their own disqualification powers. (Section 3 had been dormant for more than a century before January 6th.) What due process does there have to be? In the oral arguments, Chief Justice John Roberts imagined someone coming into the office of a Colorado election official and saying, of a candidate, “I think this person is guilty of insurrection, it’s not a big insurrection, but it’s something, you know, that happened down the street.” In such a case, Roberts said, “I don’t know what the standard is.” He and the other Justices may soon have to offer an answer. The Court had been weighing whether to hear a Section 3 case brought by Couy Griffin, whom a state judge in New Mexico had disqualified from serving as a county commissioner, citing his involvement in January 6th.

The Court’s decision in Anderson is obviously good for Trump; but it is also good for this country’s democratic system and the fundamental union between the states. Even the three liberal Justices agree on that point. In their concurrence, Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor write that “to allow Colorado to take a presidential candidate off the ballot under Section 3 would imperil the Framers’ vision of ‘a Federal Government directly responsible to the people.’ ” During the Supreme Court litigation, it emerged that different states have different procedures for deciding who is on the ballot—Maine and Illinois also disqualified Trump, but went about it in a different way. (In Maine, the secretary of state made the call herself; hours after the Court ruled in Anderson, she announced that Trump was back on the ballot.) The three liberals envisioned “a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” The per-curiam opinion further observes that the “disruption would be all the more acute—and could nullify the votes of millions and change the election result—if Section 3 enforcement were attempted after the Nation has voted.”

But the Justices make it clear that they did not rule this way because enforcing Section 3 would be messy, or because Trump’s supporters would be angry. “Nothing in the Constitution requires that we endure such chaos,” they find in the per-curiam opinion. They did not shy away from the idea that Section 3 still has force; they simply said that it’s up to the federal government to enforce the provision when it comes to federal officials. Indeed, the liberals note, the idea that “a handful of officials in a few States could decide the Nation’s next President would be especially surprising” given the history of the Fourteenth Amendment, which was designed to increase the power of the federal government vis-à-vis the states, and to keep individual states from tearing the Union apart and dragging the country into Civil War again. In short, while allowing states to throw Trump off the ballot might cause a political uproar, more important, it would be a constitutional travesty.

There are individual constitutional rights worth protecting, too. As the decision notes, “Section 3 works by imposing on certain individuals a preventive and severe penalty—disqualification from holding a wide array of offices—rather than by granting rights to all.” (Other parts of the Fourteenth Amendment do confer rights, including birthright citizenship.) To put it another way, because Section 3 punishes insurrectionists, there must be some way, the Court found, to “ ‘ascertain [] what particular individuals are embraced’ by the provision”—that is, who the insurrectionists actually are. The Justices are citing a much-contested 1869 opinion known as Griffin’s Case, written by Chief Justice Salmon Chase while he was “riding the circuit”—that is, filling in as a lower-court judge. They further quote Chase’s view that due process—in the form of “proceedings, evidence, decisions, and enforcements of decisions, more or less formal”—is needed.

Where the liberals—and, it seems, Justice Amy Coney Barrett, who also filed a brief concurrence-in-part—differ from the majority is in the question of which federal authority has the power to “ascertain” that someone is a disqualified insurrectionist. Based on the per-curiam decision, a five-Justice majority believes that only Congress can do so—“subject of course to judicial review”—presumably by enacting legislation. (This was Chase’s view, too.) Their basis for that finding lies in Section 5 of the Fourteenth Amendment, which enables Congress to enforce other parts of the Amendment “by appropriate legislation.” The majority found that the sections need to be read together: “Congress’s Section 5 power is critical when it comes to Section 3.”

Congress did pass such legislation, in 1870, but Congress also largely repealed it, in 1948. There is one piece of possible federal enforcement legislation on the books: 18 U. S. C. 2383, a criminal-insurrection statute. The majority note that section 2383 is the successor of an 1862 law, and thus preceded Section 3 by seven years. They strongly imply that it might, nonetheless, serve as enforcing legislation—or, at least, that any enforcing legislation should look like section 2383. But there is a ripple of ambiguity on this point that foreshadows future litigation.

Barrett’s objection is that the Court was not required to offer a view on the “complicated question” of how the federal government itself could enforce Section 3 in order to resolve this case, it just had to say what Colorado couldn’t do. The liberals go further, in substance and in tone. They complain that the majority “shuts the door” and “forecloses judicial enforcement of that provision.” The example they give is what “might occur when a party is prosecuted by an insurrectionist and raises a defense on that score.” In other words, a defendant might try to get a verdict overturned by claiming that the district attorney or judge in the case is an insurrectionist, and thus that the trial was not a fair one. But that hypothetical offers a glimpse of how broadly and, indeed, recklessly Section 3 might be applied in the absence of a clear system for ascertaining who is and who is not a disqualified insurrectionist.

More strikingly, the liberals question their colleagues’ motives. “They decide novel constitutional questions to insulate this Court and petitioner from future controversy,” they write. That is a strong charge; the “petitioner,” of course, is Donald Trump. They go further a few pages later, writing that “the majority attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” It’s not just that this language is angry; it oddly ignores the majority’s affirmation that Congress does have exactly that power. From a civil-liberties perspective, one might, in fact, argue that the majority gave Congress too much power to exclude dissident voices from public life. (Section 3 mentions not only insurrectionists but those who give “aid or comfort to the enemies” of the United States.) The liberals’ Trump-insulation accusation is most likely to resonate with those who have a hard time letting go of the hope that Trump could simply be kicked off the ballot. But it does little to encourage a judicious discussion of what the real parameters of Section 3 might be.

Barrett, despite sharing the liberals’ reservations about Congress’s power, offers what reads as an admonishment of their concurrence. “The Court has settled a politically charged issue in the volatile season of a Presidential election,” she says. “Particularly in this circumstance, writings on the Court should turn the national temperature down, not up. For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case. That is the message Americans should take home.”

To be clear, Trump did not get off on a technicality. His lawyers had made some fairly arcane arguments—for example, that the President was not an “officer of the United States” under Section 3, and even that the inaugural oath did not count as an oath to support the Constitution. But the Court did not take one of those escape routes. It spoke, instead, to a broad constitutional principle that can also be framed as a practical question: Who decides who doesn’t get to hold any federal office? Not Colorado. ♦