Why the Supreme Court is likely to put Trump back on the ballot in Colorado and across the country

(Jon Elswick/Associated Press)

Why the Supreme Court is likely to put Trump back on the ballot in Colorado and across the country

Opinion piece, Elections 2024

Harry Litman

January 8, 2024

More than any U.S. Supreme Court case in decades, former President Trump’s appeal of the Colorado decision that barred him from the U.S. primary combines a major political moment with a lack of guiding legislation. For the court, which announced last week that it would hear the case on a warp-speed schedule, this is a precarious combination that exposes it to accusations of political bias.

So how will the court rule? I think it will be undesirable to allow a patchwork of votes, with Trump appearing on the ballot in some states but not in others.

To avoid such patchwork,

a majority of the judges

is likely

to overturn the Colorado Supreme Court’s ruling that Trump was guilty of insurrection and therefore ineligible to hold office under the 14th Amendment. And the court will likely do so in a way that also prevents other states from removing the former president from the ballot.

As the court has demonstrably done in other important decisions, it may well act politically in the sense that it is most concerned with the practical outcome. That is different from saying that the decision will be along party lines. A clearly partisan outcome, similar to the Bush vs. Gore opinion, would be a disaster for the courts’ already diminished reputation.

The majority could well consist of those most likely to share Chief Justice John





Concerns about upholding the courts and reluctance to interfere in the elections. It is more likely that such a majority will consist of justices open to institutional arguments, such as Elena Kagan and Brett


Kavanaugh, then the far-right rebel Samuel




and Clarence Thomas. That kind of coalition might favor a rationale that is not exactly pure, but that serves broader social and political goals.

It’s an An

first sign of such a consensus

that is the consensus of the court

order to accept the case

was unanimous

and establishing an accelerated schedule, with oral arguments scheduled in a month. The later the court acts, the more intrusive and controversial its role will be.

The court also retained maximum flexibility in handling the case. Instead of considering the narrow legal questions posed by the Colorado Republican Party or challengers to Trump’s qualification for the ballot, the justices accepted Trump’s broader question. That means any of the seven or so bases for reversal laid out in Trump’s petition are fair game.

It’s hard to imagine the court at this point

instead of

upholding Colorado opinion and thereby also allowing each state to make its own decision on whether the Republican front-runner appears on the ballot. I don’t think such an arrangement would be unconstitutional, but it would be one


ugly outcome that would be laid directly at the feet of the court.

The Constitution gives an important role to the states in electing the president, so much so that the winner of the national popular vote has lost two of the last six elections. I don’t think the framers would have been bothered by the prospect of different states having different candidates on their presidential ballots. But they also did not expect a national two-party system.

In 2024, the social, cultural and political fact is that the presidential election will be a completely national contest that will play out according to peculiar and obscure state rules. If one of the two major party candidates is absent in some state elections but not others, it could embolden even more Americans to refuse to recognize the legitimacy of the election. I think the court would view that as horrible.

Furthermore, it would be virtually impossible for the court to come up with a one-size-fits-all solution that bans Trump from the ballot in every state. The court is not a fact-finding body, and this case does not present the kinds of facts from which it could be concluded that Trump participated in an insurrection under Section 3 of the 14th Amendment. The justices could conclude that Colorado’s determination did not violate federal law, but that is a far cry from guaranteeing the same outcome in every other state.

That’s why it’s more likely that a majority of justices will reverse the Colorado Supreme Court under a federal law principle that also halts parallel efforts to remove Trump from the ballot in Maine, Massachusetts, Illinois and other states.

Trump’s petition gives the justices several tools to do this, from criticizing the Colorado court’s definition of insurrection to finding that the president is not an officer of the United States. All of these remedies to overturn the Colorado decision have significant flaws. But given the political, legal, and practical considerations before the court, I think the court will focus on one of these considerations to avoid even messier consequences.

Harry Litman is the host of the

Talking Feds Podcast




Please enter your comment!
Please enter your name here


Hot Topics

Related Articles