Oral arguments were held at the United States Supreme Court on February 8, 2024 in the case involving the Colorado State Supreme Court decision allowing for the removal of Donald Trump from the state's primary ballot. The arguments lasted for two hours and nineteen minutes but were over before they began. It is guaranteed the USSC will overturn the Colorado Supreme Court decision and permit Trump to appear on the state's ballot. The only question is whether it might be a 9-0 decision.
Core Argument of Trump
The core argument made by Trump's counsel is that the literal language of Section 3 of the Fourteenth Amendment prevents an insurrectionist from HOLDING office. Strictly speaking, it doesn't prevent an actor from RUNNING for office. Because Section 3 includes language that allows the disqualification to be REMOVED by a two-thirds vote of Congress, it cannot be left to a state to determine a candidate will BE ineligible for office at the time they TAKE office if it is possible that Congress could remove their disqualification. Any attempt by a state to block ballot access to such a candidate PRIOR to that disqualification would be equivalent to altering the "term limits" on office, which would be unconstitutional. (Here, counsel for Trump consistently used the language "term limits" to refer to qualifications and disqualifications, not "term limits" in the sense of barring additional terms after X terms served.)
More importantly, the Trump argument is that the Griffin decision from 1869 was correctly decided and that CONGRESS must enact laws to enforce the Section 3 disqualification in order to ensure consistency. That implies that ultimately disqualification from office or a ballot must be a Congressional function, not a state function.
Core Argument of Colorado
The core argument presented by counsel for Colorado was that Section 3 was self-executing like all other aspects of the Fourteenth Amendment, that administration of Presidential elections was a function of STATE government and that states held authority to enforce qualifications and disqualifications per state law and due process. The states have the right and responsibility to ensure their electoral votes are not wasted on candidates who are UNQUALIFIED due to being under-age, foreign born or DISQUALIFIED due to insurrection under Section 3.
Key Concerns of the USSC
Questions from all of the justices to counsel for the State of Colorado and Donald Trump all reinforced common themes, all of which had nothing to do with the concern of an insurrectionist gaining entry on a ballot and potentially regaining national office and everything do do with concerns about inconsistencies between states and equity in enforcement of such disqualifications from office.
The court's collective inclination in the case was evident immediately but became certain at eighty one minutes into the process when Chief Justice Roberts asked this question:
The whole point of the Fourteenth Amendment was to ensure states would not restrict rights under equal protection? Wouldn't the Fourteenth Amendment be the LAST place you would expect to see a power delegated TO the states regarding elections?
The counsel for Colorado attempted to answer by stating that the control of federal elections and explicitly processes for selecting electors who vote for President are state functions and that the Fourteenth ALLOWED Congress to act in this space in this area but still left the power with the states.
At that point, Brett Kavanaugh opined that this ambiguity tells us that Congress has the predominate role in this process.
BALLGAME OVER.
That conclusion that enforcement of Section 3 will now be viewed purely as a Congressional power has another key impact on the pending criminal cases facing Trump. One question posed in the oral arguments pointed out that Congress enacted laws after the Griffin case explicitly creating a statute criminalizing insurrection. As the question went,
- so there IS a disqualification in Section 3 for insurrection
- there IS a US Code criminal statute regarding insurrection
- if someone is found guilty of that federal crime, the Section 3 language should be self-executing
- if Congress wants to remove the disqualification for a candidate, they can do so with a two-thirds vote
YET... Trump has not been indicted for insurrection. Why? He has been indicted on other charges, but not "insurrection" exactly. The very fact that this question was posed in the Supreme Court seems to explicitly state that even a conviction on the criminal charges related to January 6 as currently structured would NOT meet the Supreme Court's new litmus test on whether the Section 3 exclusion could be enforced against a convicted Trump. If Trump manages to win the 2024 election, the country will be engulfed in another Constitutional crises where a actor out on appeal can resume the Presidency, dismiss his own criminal charges and remain in power and thumb his nose at any state criminal conviction that might occur in Georgia.
In short, the current criminal prosecutions in flight only hold value if Trump LOSES the election. If he WINS re-election, NOTHING currently in process will legally keep him from regaining power.
One final key legal concern raised by multiple justices regardless of presumed conservative or liberal leaning involved the impact of collateral estoppal, meaning if one state like Colorado held that a candidate was ineligible to appear on the ballot based on this due process with these facts and this interpretation of state law, would other states voluntarily (or feel compelled to) also remove that candidate from their ballot, bowing to the same interpretation of facts? Would that not result in one state attempting to influence an entire national election? Wouldn't that be disenfranchisement of voters?
To a person, all nine justices appeared absolutely terrified by this prospect of potential chaos. Of course, none of them considered that multiple Republican State Attorneys General attempted to do THE EXACT SAME THING after the 2020 election by filing motions to reject OTHER STATES' electoral slates for bogus claims of election fraud they knew to be false. Unfortunately, the counsel for Colorado -- in one of MANY weak points in their arguments -- failed to make that point. Counsel for Colorado also failed to mention that we have a word for this potential variability -- FEDERALISM -- and we have tolerated this potential for variability stemming from federalism since Day One under the current constitution when the process of the Electoral College was created. NOW suddenly, it's a concern?
Continuing on this thread of questioning, multiple justices asked questions expressing concern that affirming the Colorado decision might encourage groups in other states to take retribution by filing motions to block OTHER candidates, creating an explosion of heated, time-sensitive litigation, generating even more chaos. Counsel for Colorado replied to these concerns by stating there HASN'T been a flood of such efforts required partly because a) there was a blanket amnesty granted by Congress in 1876 to all participants in the Confederacy (while NOT removing the ban on future insurgents) and b) we haven't had an actor until Donald Trump actively engage in leading an insurrection against the government. This is NOT and SHOULD NOT be a routine case in American history going forward.
The reply from Brett Kavanaugh? We haven't had this issue come up because no state has attempted to block a candidate for national office from its ballot until Colorado in 2024.
How hostile to the enforcement of Section 3 was this court?
Neil Gorsuch posed a hypothetical question to the Colorado counsel... Suppose an insurrectionist became President. Would someone serving under them in the military or in office somewhere have the right to refuse an order from that President? The counsel, clearly not comfortable in this area of law hemmed and hawed, stating given that the actor was now HOLDING office and that other mechanisms had not functioned to keep them out of office, it WOULD likely require impeachment to remove them and until that happened, other subordinates in the government or military would not be able to ignore commands or directions until removal. Gorsuch then said, but if Section 3 is self-executing, can't these parties just refuse the order? If not, then how are you arguing the law is self-executing?
This is a Supreme Court Justice asking this hypothetical. He essentially asked this question: If you the plaintiff find that multiple mechanisms that SHOULD have stopped someone from gaining power failed and allowed the actor to gain power, now that they're IN power, can you describe to me how they should be removed from power? If you thought your mechanism was self-executing but multiple parties failed to do their duty under the law, if you now cannot describe how they should be removed from power, then how can your law be self-executing? Why should it be treated as such?
It must be stated very clearly.
The United States Supreme Court explicitly rejected clear language in the Constitution delegating control of elections to states in favor of an interpretation of a different part of the Constitution pulling power TO Congress and the courts that includes language this same USSC has recently GUTTED by abandoning key aspects of voting rights enforcement.
The United States Supreme Court explicitly rationalized a forthcoming decision gutting state control of ballot eligibility based upon on bogus concerns about voter disenfranchisement resulting from state-level abuse of election law. Huh? The actor in this case conspired with Republican State Attorneys General across SEVENTEEN STATES to attempt to REJECT the votes of MILLIONS of voters in Michigan, Wisconsin, Pennsylvania and Georgia in order to illegally retain power. The very first rationale cited in the summary of that bogus amicus brief held up the SANCTITY of state responsibility for election integrity:
First, the States have a strong interest in safeguarding the separation of powers among state actors in the regulation of Presidential elections.
The court's confusion might be forgiven. On one hand, they correctly rejected that case in Texas vs Pennsylvania stating Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections.. Yet here, they have clearly indicated they will rule against Colorado for fear affirming Colorado's decision would interfere with voter rights in other states. When you are opportunistically picking and choosing your principals, it's hard to maintain the appearance of consistency.
The immediate path forward is clear. Trump will be allowed on the Colorado ballot in an opinion that will probably be released in a matter of days. No other state will bother attempting to enforce its election laws by keeping Trump off future ballots either.
The longer path forward is completely opaque and appalling from a legal and civic standpoint. The only safe prediction is that Anderson vs Griswold will vault into the pantheon of famous, tragically flawed United States Supreme Court decisions, right up there with Dredd Scott vs Heller, Plessey vs. Ferguson, Citizens United vs FEC, Dobbs vs. Jackson Women's Health in long term damage to the country. Of course, only for the five percent of the population that still have any concern at all with history - past or future.
WTH
