Trump Ballot Case: SCOTUS Could Hand Him a Win in Multiple Ways - One Would Be a 'Chilling' Scenario
In totalitarian regimes, taking the official lie seriously becomes mandatory.
Although gargantuan irregularities marred the 2020 presidential election, and although federal agents almost certainly had a hand in the events surrounding the Capitol incursion of Jan. 6, 2021, the establishment nonetheless has spent more than three years deflecting attention from its own soft coup by blithely and informally accusing former President Donald Trump of having engaged in insurrection, which in turn has empowered petty tyrants in Colorado to remove Trump from their 2024 presidential ballot.
Thus, the Supreme Court’s nine justices must take the lie seriously. And when they finally rule in Trump’s favor, as they appear likely to do, they could either put an end to the tyrants’ madness or, in one nightmare scenario, issue a ruling so fraught with mischief that it could throw the 2024 presidential election into total confusion.
On Thursday, SCOTUS heard arguments from lawyers for both Colorado and the former president. By all accounts, the justices appeared deeply skeptical of the state’s argument for excluding Trump from its ballot.
That argument involved Section 3 of the 14th Amendment, which reads as follows:
“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.”
The states ratified the 14th Amendment in 1868, three years after the Civil War. Thus, the authors of Section 3’s “insurrection” clause meant to exclude from office former Confederate officials who had engaged in armed rebellion.
During questioning on Thursday, the justices noted obvious problems with Colorado’s attempt to apply Section 3 to Trump.
No one has charged the former president with insurrection, for instance, let alone convicted him. Furthermore, Section 3 makes explicit mention of other elected federal offices but does not mention the presidency.
In the fears of some legal analysts, however — and, as it happens, in the text of the 14th Amendment itself — there lurks an option that would allow SCOTUS to raise the possibility of an actual anti-democratic coup in January 2025.
In short, what if a hostile Congress made the final decision on Trump’s eligibility for the presidency?
On Tuesday — two days before the SCOTUS questioning — Andy Kroll of ProPublica cited a “camp of lawyers and law scholars” who believe that Congress “must first pass legislation authorizing the disqualification of a candidate under the 14th Amendment before a court or a secretary of state can remove that candidate.”
Indeed, the 14th Amendment does allow for such an interpretation. According to Section 5, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”
Section 3 also provides that “Congress may by a vote of two-thirds of each House, remove such disability.” This certainly gives legislators wide latitude in determining Section 3’s applicability.
Finally, the U.S. Constitution allows Congress to remove a president through impeachment. It does not authorize courts to do so. Nor does it authorize judges or other government officials to exclude individuals from presidential ballots.
All of this leads to a possibility that, according to The Associated Press, “unnerves a lot of legal experts.” Kroll, in fact, cited an amicus brief to SCOTUS that laid out what he called a “chilling scenario.”
UCLA law professor Richard L. Hasen, Ohio State law professor Edward B. Foley and veteran Republican election lawyer Benjamin L. Ginsberg submitted the brief “in support of neither party” in the Colorado ballot case.
Their primary objective was to prod the justices toward a clear determination of the eligibility question.
“To punt on the merits would invite chaos while risking great damage to the Court’s reputation and to the Nation as a whole,” the brief read. Indeed, to do so would “risk political instability not seen since the Civil War.”
Imagine, for instance, a scenario in which Trump wins the 2024 general election but Democrats win control of Congress. Then, imagine Democrats in the new Congress pass legislation to exclude Trump under the 14th Amendment.
“Neither Mr. Trump nor his supporters, whose votes effectively will have been discarded as void, are likely to take such a declaration lying down,” the brief read.
In their fear and derangement, the establishment and other Trump haters would lead us down this path.
Furthermore, notwithstanding their skepticism of Colorado’s arguments, the justices did send some potentially alarming signals.
To be clear, those signals did not justify suspicions that they might uphold state-level decisions to exclude Trump from ballots. At the same time, however, they did nothing to allay fears of that “chilling scenario” coming to fruition.
Admittedly, to recognize the signals, one must read between the lines to a certain extent. But that reading would be a plausible one.
For instance, Justice Elena Kagan challenged Colorado on its presumption that it could unilaterally exclude someone from the ballot. According to SCOTUSblog, Kagan remarked that this decision “sounds awfully national to me.”
Justice Amy Coney Barrett agreed, noting that such a decision “just doesn’t seem like a state call.”
And Chief Justice John Roberts observed that Colorado’s success in disqualifying Trump could lead to retaliation. Other states, for instance, could use other aspects of the 14th Amendment to disqualify the Democratic candidate. Roberts called this tit-for-tat “a pretty daunting consequence.”
Phrases such as “sounds awfully national” and “doesn’t seem like a state call” point in only one direction. If states cannot settle the ballot eligibility question on their own, then only SCOTUS or Congress could.
What could SCOTUS do to avoid the chaos that might ensue from an unresolved eligibility question?
Ideally, it would define “insurrection” as the 14th Amendment’s authors clearly intended.
By drawing the painfully obvious distinction between officers in the Confederate Army and unarmed citizens protesting at the U.S. Capitol, SCOTUS could invalidate all future attempts to bar Trump from the presidency under Section 3. In so doing, it would also cast the “insurrection” narrative in its properly ridiculous light.
Anything short of this would amount to endorsing the establishment’s totalitarian lie.
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