The Supreme Court has six options to keep Trump on the ballot. They are all flawed

(Mariam Zuhaib/Associated Press)

The Supreme Court has six options to keep Trump on the ballot. They are all flawed

Opinion piece, Elections 2024

Harry Litman

January 10, 2024

I recently suspected that the U.S. Supreme Court, in considering former President Trump’s eligibility to run for office under the 14th Amendment, will seek a national solution that applies to all fifty states. That dictates a reversal of the Colorado Supreme Court’s disqualification of Trump for participating in the insurrection


on grounds that prevent other states from following suit.

This case is one of the rare cases in which the court would likely have to consider broad social and political issues in its judgment. And Chief Justice John G. Roberts Jr. will look for a rationale that can achieve the greatest possible consensus and minimize the consequences of a divisive decision.

So what are the court’s options to overturn Colorado? I count six possible grounds, all of which are flawed to some degree.

Trump did not engage in an insurrection: The court might differ from the Colorado court on this point in two ways.

First, it was able to find that Trump’s role in the events of January 6, 2021 did not constitute incitement to imminent lawlessness and was therefore protected by the First Amendment. Trump states that his only explicit instructions called for peaceful and patriotic protesting and other lame encouragement. But it is virtually inconceivable to me that the court would side with Trump on this questionable characterization of events, in the absence of a developed factual account.

Otherwise, the court might agree Trump’s argument that the definition of insurrection under the 14th Amendment should be limited to a conflict such as the Civil War, consistent with the historical context of the provision. In contrast, January 6 was merely a political protest that turned violent, his lawyers argue.

Adopting this line would drastically limit the scope of Section 3 of the amendment, making it almost constitutionally void. Moreover, it would not only contradict the Colorado court’s persuasive analysis, but also historical practice. The courts and Congress have disqualified federal officials based on much less, including Victor Berger, who refused to serve in Congress based on his socialist and anti-World War I views.

The judges do not have sufficient standards for the application of the amendment: Trump’s main argument is that without a statute passed by Congress providing guidance on Section 3 of the 14th Amendment, courts have no legally manageable standards for resolving disputes over presidential qualifications. This implicitly invokes the Supreme Court’s rationale for removing itself from policing extreme partisan gerrymandering.

One problem with this argument is that there is nothing inscrutable about the ban on insurgents. Courts decide issues of similar complexity all the time.

Second, the restriction invoked is one that the Supreme Court adopted for itself; it does not prevent state courts from acting. The Supreme Court would thereby vacate the premises and allow the states to step into the breach, an outcome that is unlikely to be welcomed


The section requires congressional authorization: This statement differs subtly but importantly from the previous one. Section 3 is not self-executing, but rather requires congressional action to be applied by any court, which would be consistent with prevailing historical practice.

But it is well established that the equal protection and due process provisions of Section 1 of the same amendment have great force regardless of congressional action. It is difficult to see how this principle could hold if the court finds that Section 3 has no such force in itself. This argument could also embolden a future Democratic Congress

Impeach Trump, disqualify Trump from office


The amendment prohibits holding a position, but not standing for election: It is undisputed that Section 3 imposes a qualification for holding office, similar to an age, residency or citizenship requirement. But a state, for example, can certainly prevent an unqualified candidate, one who will not yet be 35 years old when she assumes the presidency, from running for office.

The Colorado courts were out of step with state law: This appeals to a widely discredited theory that first emerged in the case of Bush vs. Gore: That the Constitution’s election clause allows federal courts to overturn state court rulings that significantly deviate from the dictates of state law. This questionable approach would alienate progressives from the courts. Moreover, there is no plausible suggestion that the Colorado Supreme Court significantly departed from the requirements of state law.

The President is not a federal official under the amendment: The court in Colorado used this reading to avoid the abyss of disqualifying Trump. But it has problems when it comes to text interpretation and sensitive policies. Both the Colorado Supreme Court and the Maine Secretary of State have exposed their weaknesses.

That sums up the Supreme Court’s unenviable hand, which doesn’t contain as much as a face card, let alone an ace. The argument that causes the least damage to other jurisdictions and is most appropriate to the present case may be that the president is not an officer. The other, least unlikely option, despite the tension with the first part of the 14th Amendment, would be to require congressional action to enact Section 3.

Neither is particularly convincing, and the other possibilities are less so. And yet, if the court wants to impose a one-size-fits-all federal solution on Trump’s ballot in all fifty states, it is clear that it will have to settle for a deeply flawed rationale.

Harry Litman is the host of the

Talking Feds Podcast




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