The Supreme Court is set to hear one of the most consequential cases in the nation’s history while considering complex legal questions that could affect the election.
Oral argument will take place on Feb. 8 in Trump v. Anderson, which questions whether the Colorado Supreme Court erred in ruling that a post-Civil War constitutional provision disqualifies former President Donald Trump from appearing on the state’s ballot.
Depending on their ruling, the justices could influence the presidential election in a way not seen since Bush v. Gore in 2000.
Feb. 8 and Beyond
Arguing for President Trump on Feb. 8 will be Jonathan Mitchell—one of former Supreme Court Justice Antonin Scalia’s clerks and Texas’ former solicitor general.
Both sides will have 40 minutes to argue their respective cases.
1. Trump Is Disqualified Under Section 3
Observers have indicated to The Epoch Times that upholding Colorado’s disqualification is the least likely conclusion for the Supreme Court, which is composed of a 6–3 conservative majority that includes three justices appointed by President Trump.
Either way, disqualifying President Trump from ballots would be a dramatic turn of events that would shake the foundations of America’s constitutional democracy in a way prudential and incremental justices are wont to avoid.
Doing so would prevent millions of Americans from directly voting for President Trump, who is the presumptive GOP nominee and has led President Joe Biden in many head-to-head matchups.
On its own, a narrow ruling that President Trump engaged in insurrection isn’t enough to disqualify him. However, it would provide fodder for officials like Maine Secretary of State Shenna Bellows, who cited the Colorado Supreme Court ruling in her determination that President Trump couldn’t appear on the state’s ballot.
It’s also unlikely that the court will issue such a ruling without deciding whether President Trump meets another critical requirement within Section 3—namely, that he’s an “officer of the United States.”
2. Trump Not an ‘Officer of the United States’
Perhaps the best outcome for President Trump is a Supreme Court ruling that he isn’t an “officer of the United States.” This would presumably prevent state courts from applying Section 3 to him at all, cordoning off a whole subset of litigation that could disrupt his campaign.
The impeachment clause reads: “The President, Vice President, and all civil Officers of the United States, shall be removed …”
From a textual standpoint, Section 3’s very long first sentence hinges on whether a person seeking the presidency or other offices had sworn an oath to “support the Constitution.”
3. Congress Needs to Weigh In
The 14th Amendment differs from others in how much authority the text gives Congress over its implementation.
Section 5 of the Amendment allows Congress “to enforce, by appropriate legislation, the provisions of this article.” Section 3 also contains a clause allowing Congress to remove disqualification—or “remove such disability”—by “a vote of two-thirds of” the House and Senate.
But as with other provisions in this dispute, it’s unclear what exactly that language means in practice. Congress’s power over the amendment has spawned several lines of argument regarding Section 3’s applicability to President Trump.
Entangled in determining whether President Trump committed an insurrection is a question of whether Congress, rather than the courts, should determine whether a bona fide insurrection took place.
4. Colorado Judges Erred
The narrowest decision and likely avenue for prolonging the issue is one in which the Supreme Court merely challenges the Colorado judges’ handling of the case.
In that situation, the justices could theoretically remand the decision to a state court for further deliberation, leaving open the possibility of yet another Supreme Court challenge.
It’s also possible the justices could cite Colorado law in striking the state court’s disqualification.
Both of those options would presumably allow other state courts, legislatures, and secretaries of state to issue decisions removing President Trump from their ballots.
President Trump’s petition to the Supreme Court focused mostly on Section 3’s applicability to him. However, he did accuse the state Supreme Court of violating the Constitution’s elector’s clause, which vests state legislatures with the power to choose individuals who decide the president through the Electoral College.
It did so by flouting the Colorado Legislature’s guidelines for challenging a candidacy in court, his petition argues.
Raising due process concerns, President Trump criticized Judge Wallace for bypassing the statutory deadline for holding a hearing on Ms. Anderson’s and other voters’ petition challenging his candidacy.
His petition also cites Justice Samour’s dissent, which described the lower court’s litigation as falling “woefully short of what due process demands.”
