Supreme Court: Trump Stays on the Ballot

A unanimous Court stops State efforts at disenfranchisement

This morning, the Supreme Court rejected efforts to exclude Donald Trump from presidential primary ballots.

In December 2023, the Colorado Supreme Court removed President Trump from the state’s presidential primary ballot – a historic first for any state. Judges in Maine and Illinois soon followed Colorado’s lead. Leading up to the Supreme Court’s opinion, there were unresolved challenges to Trump’s candidacy in 14 other states. If even a few of the challenges had succeeded, Trump’s candidacy would have been in jeopardy, the GOP primaries would have been significantly altered, and a handful of judges would have tipped the 2024 election to the Democrat’s favor. It would have been chaos.

Via New York Times

Thankfully, the Supreme Court unanimously rejected the state-level attempt to influence the 2024 election. The theory to exclude Trump from the ballot was based on Section 3 of the 14^th Amendment, which states:

“No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” (Emphasis added.)

A bit of background is necessary to explain the Supreme Court’s opinion. The Colorado challenge to Trump’s candidacy alleged that Trump “intentionally incited the breaching of the Capitol on January 6 in order to retain power.” The District Court which initially reviewed the case agreed, finding that Trump had engaged in an insurrection. However, the District Court declined to remove Trump from the ballot, finding that Section 3 did not apply to the Presidency.

Upon review, the Colorado Supreme Court agreed that Trump engaged in insurrection and also reversed the District Court’s holding on the law, concluded that the Presidency was covered under Section 3. Thus, the Colorado Supreme Court ordered the Secretary of State to not “list President Trump’s name on the 2024 presidential primary ballot” or “count any write-in votes cast for him.” (This order was stayed pending review by the Supreme Court.) The Supreme Court held that the Colorado Supreme Court erred in excluding Trump from the Colorado ballot. It did so by relying, in large part, on the history of Section 3 and the 14^th Amendment.

According to the Supreme Court, States may only disqualify officeholders or candidates from state office. This power doesn’t extend to federal elections or officers: “Nothing in the Constitution delegates to the States any power to enforce Section 3 against federal officeholders and candidates.”

After all, the 14^th Amendment provided limitations against the States, prohibiting them from abridging the privileges or immunities of citizens, and mandating that the States cannot deny due process or equal protection. The limitations on State authority in the 14^th Amendment are inconsistent with the interpretation that the 14^th Amendment also gives States power over candidates for federal elections.

This interpretation is consistent with the history of the 14^th Amendment and how the States have applied the 14^th Amendment. As the Supreme Court observed, States have, in the past, used Section 3 to disqualify persons from State office. But they have never used Section 3 to ban federal candidates. The lack of historical precedent was a “telling indication of a severe constitutional problem with the asserted power.”

The Supreme Court also noted that State enforcement of Article 3 would present a uniformity problem. As we have seen in the Trump challenges, some States have removed him from the ballot while others haven’t. To allow this practice to continue would violate our basic principle that “the President represents all the voters in the Nation.”

Furthermore, disqualification would be administered under different standards. Some States might choose a heightened burden (beyond a reasonable doubt) while other States would allow a much lower burden (preponderance of the evidence). Evidentiary standards might also be different; hearsay might be allowed in some jurisdictions while its inadmissible in other jurisdictions. As a result, a Presidential candidate (like Trump) would be ineligible in some States but eligible in others.

The Supreme Court was clear that such a “patchwork” result would “sever the direct link that the Framers found so critical between the National Government and the people of the United States as a whole.” Evolving electoral maps and the resulting disruption “could nullify the votes of millions” and change the results of national elections.

We add that there would be nothing stopping States from post-election removal of candidates. Close elections would be overturned by judicial order. All it would take is one State and some activist judges. This practice was so dangerous, so contrary to our Constitution and system of government, that a unanimous Supreme Court rejected it in full.

Addendum: A brief explanation might be helpful to explain how Section 3 might be enforced. The Supreme Court explained that Section 5 of the Constitution “enables Congress, subject of course to judicial review, to pass appropriate legislation to enforce the Fourteenth Amendment.” This is not a new concept; back in 1870, Congress passed the Enforcement Act to enforce Section 3.

Justices Sotomayor, Kagan, and Jackson, concurring in the judgment, takes issue with the Court for opining “on which federal actors can enforce Section 3, and how they must do so.” For the liberal justices, it was improper for the Court to resolve question of how to enforce Section 3 - a question that was “not before” them. (Justice Barrett, concurring in part and concurring in the judgment, made a similar observation.) They further state that the Court’s opinion forecloses on other options to remove insurrectionists, and accuses the majority of insulating “all alleged insurrectionists from future challenges to their holding office.”

The comments from the liberal justices and Barrett are unpersuasive. In providing direction on how Section 3 of the 14th Amendment can be applied, the Court has provided clarity to a contentious and novel issue of law. As it should.