BUSINESS INSIDER
The Supreme Court this week is set to hear arguments on whether former President Donald Trump, the Republican frontrunner, can be excluded from Colorado’s primary ballot ahead of the 2024 election — a case that forces the top court to wade into unclear election law in a politically-charged year.
Oral arguments start Thursday in the case, which could have far-reaching consequences for Trump’s 2024 election prospects as he fights to remain a viable candidate as a growing number of states remove — or consider removing — him from their ballots.
While many election law experts have cast doubt on the likelihood that SCOTUS will rule against Trump, the case is unprecedented in the legal questions it’s asking the nine justices to determine.
The case was first brought by a group of Republican voters in Colorado who argued Trump was ineligible to appear on the ballot because he engaged in insurrection by encouraging his supporters on January 6, 2021, to storm the Capitol during the congressional certification of President Joe Biden’s win.
A district judge in Colorado initially ruled that Trump did engage in insurrection but determined he should not be barred from the ballot. The Colorado Supreme Court, however, overturned that judge’s ruling and proceeded to ban him.
“Colorado has a real case. This is not a frivolous or completely off-the-wall argument,” Scott Lemieux, a professor of political science at the University of Washington and an expert in constitutional law, told Business Insider.
The question at the center of the case stems from a small segment of the 14th Amendment known as Section 3, which prohibits any “officer of the United States” from holding office if they “engaged in insurrection or rebellion.”
The disqualification clause was originally meant to keep former Confederates from returning to the government after the Civil War. The Supreme Court has never directly ruled on the application of the clause.
A decision in the Trump case will likely come down to the court’s definition of two terms included in the Amendment: “officer” and “insurrection.”
“From a legal perspective, this case presents a constitutional super-nova: A Constitutional provision with nearly no authoritative interpretation by the Supreme Court; coupled with a former president who wants to occupy the position again; coupled with a state Supreme Court ruling holding to the contrary,” Doron Kalir, a professor at Cleveland State University College of Law, told BI.
“I don’t think many law professors could have concocted a more complex exam question in their mind,” he added.
Oral arguments could foreshadow how the court is leaning
Court watchers may be able to infer how individual justices are thinking about the questions at the heart of the case by tracking how they act during oral arguments, Lemieux said.
“You can tell by the way their questions are framed or by how the justices try to pick apart arguments,” he said.
The justices’ attitudes could also offer early clues about whether the court is likely to vote along its ideological divide — a six-three conservative tilt. Three of the justices determining the case were appointed to the court by Trump.
Attorneys for both Trump and the Colorado voters will have to address whether the disqualification provision applies to Trump, whether January 6, 2021, was an insurrection, and, if so, whether Trump participated in the events.
Trump’s defense is likely to focus on arguing that the former president was not an “officer” of the US when he was president and that he did not participate in insurrection.
Attorneys for the former president have argued that the term “officer” refers to executives appointed by the president, not the president himself, who is elected by the people.
Several outcomes are possible
The justices could rule against Trump and allow Colorado to proceed with its election without him on the ballot, though most election law experts have said this is an unlikely outcome.
Alternatively, the top court could side with Trump for a variety of reasons: They could determine he did not engage in insurrection while president; he was not an “officer of the United States” while serving as president; or the court could dismiss the case on a technicality, determining only Congress has the power to enforce the clause.
They could also determine a person needs to be charged and convicted of engaging in insurrection in order for the clause to apply, to uphold due process.
“In other words, the court may write the opinion as narrow and as wide as it would choose,” Kalir told BI.
Some of those options give the court “off-ramps,” in which the justices can avoid answering whether January 6, 2021, was an insurrection and whether Trump engaged in it.
Carolyn Shapiro, founder of Chicago-Kent’s Institute on the Supreme Court of the United States, said kicking the ultimate decision to Congress could be “the worst thing they could do.”
“We need a clear answer to the question of Trump’s eligibility as soon as possible,” she told BI in an email. “The significant risks of chaos and even violence will only escalate without that certainty.”
If the Supreme Court sides with Trump, other states that have considered removing Trump from their ballots, including Maine and Oregon, will be barred from doing so.
The Supreme Court could issue its ruling anytime after hearing arguments. Colorado’s primary ballots have already been printed and include Trump’s name. The state votes on March 5.
Most experts think the court will side with Trump
Trump has privately told people he thinks the Supreme Court will rule in his favor, though he has concerns the justices may go against him to avoid appearing too “political,” The New York Times reported last month.
Most law experts, however, think it’s more likely than not that the court will side with Trump. The definitions at the center of the case are ill-defined, offering the court a path of least resistance, Lemieux said.
“I think this is the situation in which if the court has any leeway at all, I think it will try to keep Trump on the ballot,” he said.
Whatever the outcome, experts said there’s little to no political cover for the Supreme Court. Their decisions will have huge implications for the future of this country.
“I don’t think that political fallout is avoidable no matter what the Court does,” Shapiro said.
