So with that in mind, let’s look at what SCOTUS might do with the Colorado case and others, here are what I consider to be some of the possibilities:
1. A Narrow/Kick-The-Can Ruling - SCOTUS rules that States do not have the right to exclude a candidate from Primary ballot.
They will argue that Parties have the right to nominate the candidate of their choice, leaving it up to the Party to decide on a candidate’s qualifications (ie., if Parties want to nominate a candidate that might not qualify for the general election, that’s their and their voters decision). They will say nothing about the merits of the case in terms of how they might rule on whether Trump can be on the general election ballot in each State. Furthermore, they may state that it would be premature to rule on whether a candidate qualifies to be on a general election ballot until a Party selects its nominee. This will give them an outside chance to not have to rule on the merits should Trump somehow not be the GOP nominee.
Their basis for this ruling would be that the Constitution says nothing about who a Party can nominate and in fact says nothing about political parties at all. So it’s beyond the Constitution’s authority to exclude a candidate from a Primary ballot. Also, in some States nominees are selected by Caucuses run by the Parties who make their own rules regarding how caucuses are run. In these States there are no State ballots to qualify for and the State has no role in the process. So SCOTUS could argue that Parties should have the same rights to select their candidate in Primary States as they do in Caucus States.
Yes, this ruling would be a cop out, but I would argue that it is a sound constitutional ruling.
2. A States’ Rights Ruling - SCOTUS rules that each State has the right to decide who qualifies under the U.S. Constitution to be on the Presidential Primary and/or General Election ballots. This would result in Trump being left off the Primary and General election ballots in Colorado and possibly Maine depending how their State Courts rule. It would also leave all the other States to make their own ballot determinations regarding Trump and the 14th Amendment in line with individual State laws governing elections.
Their basis for this ruling would be Article I, Section 4 of the Constitution which states:
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
and Article II, Section 1 of the Constitution which states:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of [Presidential] Electors, equal to the whole Number of Senators and Representatives …
They will argue that these Articles/Sections of the Constitution give states broad authority regarding the manner in which Federal elections are conducted, with the only caveat being the power of Congress to pass laws to supplement or override State election regulations (eg. the Voting Rights Act) under Article I, Section 4 of the Constitution. They will further argue that, to date, Congress has passed no law stripping States of their right to rule on a Presidential candidate’s ballot qualifications, including Section 3 of the 14th Amendment.
Although this would fall short of the major goal, that being to get Insurrectionist Trump disqualified from the Presidential ballots in all 50 States, it would keep Trump off the ballot in Colorado and possibly Maine (depending on what the Maine courts do with the SoS’s decision) and allow his removal in other States based on the laws in each State. From the Colorado plaintiff’s perspective, this focus on “States’ Rights” makes for a strong case that “should” appeal to the conservative justices on the court. That is if they remain true to their judicial philosophies which is an open question. It also should put one of the Justices in an awkward position based on his past ruling in a somewhat similar case.
Notably, the Colorado Supreme Court cited several “state’s rights” cases to back its opinion that Insurrectionist Trump should be disqualified, including a case in which current federal Supreme Court Justice Neil Gorsuch, then ruling as an appellate court judge, asserted that Colorado had the right to enforce a different election law. That case, Hassan v. Colorado, dealt with a state statute enforcing the federal constitutional requirement that a person must be a naturally born citizen of the United States in order to run for the presidency. In that case, Gorsuch ruled that the State of Colorado had a
“legitimate interest in protecting the integrity and practical functioning of the political process.”
Now Gorsuch could have ruled back then on purely Constitutional grounds that the candidate was not a natural born citizen and therefore was not qualified under the Constitution. But he threw in a States’ Rights argument that the State of Colorado had a right to determine whether the candidate was qualified to be on the ballot.
Will Gorsuch remain true to his judicial convictions in this case and side with Colorado again? Who knows? If not, he will have to come up with some fig leaf reasoning to argue why the two cases are different that won’t pass the smell test.
3. A Trump Is Totally Disqualified Ruling — SCOTUS rules that January 6th was an insurrection; that Trump participated in and/or gave aid/comfort to said insurrection; that the Presidency is an office of the United States; that Trump having taken an oath to defend the Constitution has violated that oath and therefore is not qualified to hold the office of the Presidency (or any other Federal or State office for that matter) in accordance with Section 3 of the 14th Amendment. As such he cannot appear on any general election ballot in any State.
This (IMO) would be the most Constitutionalist of opinions in that it would be in line with a “plain” reading of the 14th Amendment and consistent with an Originalist interpretation of the Constitution. It would be consistent with the decision of the Colorado Supreme Court and the well-reasoned decision of Maine’s SoS, as well as with other judges and Constitutional Scholars who have concluded that Trump participated in and/or gave aid/comfort to an insurrection. However, it is hard to believe that this GOP majority court will completely put politics aside and issue a ruling consistent with the plain language of the Constitution.
4. A Trump Is Totally Qualified Ruling — SCOTUS rules that January 6th was NOT an insurrection or that it was but Trump did NOT participate in it and did NOT give aid/comfort to said insurrection; that Trump having taken an oath to defend the Constitution has NOT violated that oath and therefore IS qualified to hold the office of the Presidency and is NOT prohibited by Section 3 of the 14th Amendment from holding such office. As such he cannot disqualified from appearing on any primary or general election ballot in any State.
This would be the most political of opinions that the justices will find little or no justification for in the plain language of the Constitution. But that may not stop these GOP partisans from making stuff up.
I’m sure they would try to cloak it in some flowery language about democracy and letting the people decide Trump’s fate. But this would just be putting lipstick on their pig of a decision, since in this case a democracy argument has no basis in the Constitution that they all swore to uphold.
5. A Bush v. Gore Type Ruling — A SCOTUS Ruling identical to #4 above except they will add in some language that their decision only applies to this case and should not be considered “precedent” for any similar future cases, as they did in the Bush v. Gore decision. Because they would want to have the ability to decide the opposite in future cases, should such a future case involve a Democrat.
My Closing Arguments:
The five rulings above are of course just some of the possible outcomes. There are of course numerous other possibilities, ranging from rulings based on legal/constitutional technicalities to rulings bordering on bizarre constitutional interpretations.
Here are just a couple examples of some of these other possibilities:
- A decision in Trump’s favor based on the fact that he has not been convicted or even charged with insurrection under 18 USC 2383, which if convicted would automatically bar him from office under the statute. The problem for the justices with such a ruling is that this statute did not exist at the time the 14th Amendment was put into the Constitution and several former Confederates were booted out based on the amendment alone.
- A decision in Trump’s favor based on the fact that Congress needs to deal with this issue. The problem for the justices here is that the 14th Amendment already prescribes Congress’s role, which is they have the power to return an insurrectionist to office by a 2/3s vote in each house, after an individual has been barred from running or removed from office.
However, I would say all the possibilities are on a scale ranging from purely constitutional to purely political. It just boils down to where the conservative justices want to be on that range.
Finally, I would also point out that the justices may have some other considerations in the back of their minds that they may not talk about but don’t involve the Constitution or politics.
One could be the reputation of the Supreme Court as an impartial deliberative institution of the highest order (at least that’s what it should be in a perfect world). Yes, I know they have already severely damaged the non-partisan nature of the court severely and that some of the sitting justices could give a rat’s ass about the court’s reputation (eg., Justice Thomas). But (IMO) Justices like John Roberts still have some concern for the court’s reputation and may try to convince some of his conservative colleagues from not going full MAGA and give Trump everything he wants without regard to legal/constitutional justification.
Another could be the quality of the attorneys and the quality of their legal arguments. On Colorado’s side we have seasoned Constitutional Scholars and likely very well reasoned “Friends of the Court” briefs filed by esteemed constitutional scholars like Neil Katyal and Judge Luttig. On Trump’s side he will likely have a bunch of inexperienced clowns making wild and outlandish constitutional arguments. The contrast will make it difficult for the justices to dismiss Colorado’s sound well reasoned arguments and side with Trump’s constitutionally crazy ones.
Lastly, another influencer in the back of the Justices’ minds could be FEAR. Specifically, two types of fear that could influence the Justices in opposite ways.
One fear is the fear of what could happen if Trump were to somehow get elected, or more specifically what could happen to their power of having the last word as a Court. They have no army to implement their rulings. Would Trump make good on his dictatorial promises as President and just ignore the court and push it to the side? The fear of losing power under a Trump Presidency is at least something they might be considering in deciding whether he can remain on the ballot.
The other fear is the fear of bodily harm coming to themselves and/or their families. Now this probably sounds implausible, but this is Trump MAGA Cultists we’re talking about. It only takes one crazy among the thousands and a hint by Trump to put one at risk. This is the fear many Republicans in the House said they felt during the Trump impeachment process. Whether you want to believe them or not, they said they were in fear of bodily harm for themselves and their families if they voted to impeach Trump. I personally don’t think this is something the Justices are considering but I wouldn’t rule out it being in the back of their minds.
Well, I have procrastinated long enough. It’s time to make my best guess as to what SCOTUS will do with this case when they hear it in February. After hemming and hawing the entire time I’ve been writing this I have finally decided on #2 The States’ Rights Ruling.
My pick is more of a last minute choice because I felt obligated to pick something, than any sort of well reasoned selection. It’s just based on my gut feeling that at least 2 conservative justices might want to avoid making a decision that is 100% in Trump’s favor requiring all States to keep Trump on their ballots, nor a decision that is 100% in favor of those who want Trump barred from the ballots in all 50 States. It would also be in-line with their “States’ Rights” philosophy and democratic principles since it would not automatically bar voters from deciding Trump’s electoral fate. That would depend on how other States decide whether Trump can remain on their ballots through each State’s own ballot access laws/rules and legal proceedings. At present it would only knock Trump off the ballot in Colorado (a state he probably couldn’t win anyway) and possibly Maine, depending how the law suit Trump filed in that State’s courts goes.
Now it’s time for you to pick. Be sure to vote in the poll below! Can’t wait for February 8th!