CAN TRUMP BE KEPT OFF THE BALLOT? ONE STATE SAYS YES

“We are mindful of the magnitude and weight of the questions now before us….We are likewise mindful of our solemn duty to apply the law, without fear or favor, and without being swayed by public reaction to the decisions that the law mandates we reach.”

           Majority opinion of Colorado Supreme Court, in ruling that Trump cannot be on the state’s Republican primary ballot.

            From redistricting challenges to climate change litigation, state courts are increasingly on the front lines in the fight for democracy.  We witnessed another example of their significance with the recent 4-3 decision of the Colorado Supreme Court to deny former President Trump a place on the Republican party primary ballot next year.  In a 133-page opinion, the majority provided substantial support for the legal argument that Trump should be disqualified from elective office because he has violated Article 3 of the 14th Amendment to the U.S. Constitution for participating in an “insurrection” designed to overturn the 2020 election results.

            The legal and political questions surrounding this case are enormous, but progressives should remain skeptical about prospects for the Colorado approach to prevail in other state jurisdictions, much less the U.S. Supreme Court.  Over ten states, including Virginia, have such cases on the docket, but Colorado is the only place where lower courts have engaged in fact-finding hearings that served as the predicate for keeping Trump off the ballot. 

            There are many legal ways to dismiss these cases without ever getting to the merits of whether Trump engaged in an insurrection.  And most state courts have done just that.  In November, the Minnesota state Supreme Court tossed a case similar to Colorado’s seeking to keep Trump off the Republican primary ballot. Finding that a primary is an "internal party election to serve internal party purposes," the court concluded that legal intervention was not justified.  Michigan courts recently rejected a similar case on procedural  grounds without any hearings on the merits.  Unlike Colorado, where the lower court had a five-day hearing on Trump’s involvement in efforts to overturn the election, neither Minnesota nor Michigan courts went beyond procedural issues about whether the case could be heard at all.  The U.S. Supreme Court is not required to take the case, leaving the Colorado decision to be narrowly applied to the state’s Republican party primary.

ORIGINALISM AND THE PLAIN MEANING OF THE 14th AMENDMENT

Many legal pundits are rightfully focused on the fascinating arguments stemming from the Colorado case. But the U.S. Supreme Court could find a way to overturn the Colorado decision without exploring many of them, including whether Trump engaged in behavior violating the 14th Amendment. If they choose to tackle some of the constitutional issues, however, the court will likely have to accept the factual findings of the Colorado court. The Supreme Court is not a fact-finding body, so it will have to utilize the facts provided to it from the Colorado case. It is possible, of course, for the court dismiss the case on constitutional grounds by concluding that the facts do not meet standards in Article 3.  But that will create special problems for the conservative members of the court who have consistently argued in other cases that the plain language of the law is everything.   As scholars such as Lawrence Tribe and Michael Luttig have argued, the words of the 14th Amendment are as clear as a bell, and originalists will need to perform significant legal contortions to avoid that conclusion. Otherwise, Trump will appear to be “above the law.”

There are countless other legal scenarios.  But this case is about much more than jurisprudence; the political consequences are enormous.  And don’t think that Roberts and his colleagues will ignore these if and when they deliberate. If they rule for the plaintiffs in the Colorado case, even if it is a narrow decision that allows individual states to determine their own rules for primary ballot access, it will be viewed as a conclusion that Trump violated the Constitution.  Such a finding would incense a Trump base already skeptical of our institutions and could influence not just the primaries but the general election.  But would it inevitably lead to him being denied ballot access across the country?  The court could simply apply its ruling to Colorado, leaving other states to determine ballot access one at a time. Such a ruling would likely create chaos, and it is questionable whether enough cases could be decided in time to make a difference. There are cases on the docket in over ten states, including Virginia, but few are close to having any evidentiary hearings.

If the Court rules for Trump, it could likely be narrowly tailored, and make no judgment about his role in the insurrection.  Nonetheless, Trump and his media sycophants will claim a victory he would not deserve, and the language of the decision will be the source of a level of commentary not seen since the overturning of Roe v. Wade. 

OBSTACLES REMAIN        

States generally control how candidates gain access to the ballot.  If candidates do not comply with the law, they can be denied. In the 2012 Virginia Republican presidential primary, for example, candidates Newt Gingrich, Rick Santorum, Rick Perry, and Jon Huntsman did not appear on the ballot, and there have been instances where the names of third-party candidates have been left off ballots in some states for general elections, such as Kanye West in Virginia, Arizona, and Wisconsin in 2020.  One must be a certain age to serve in office, and some states prohibit felons from serving.  Rules are rules, something that Trump and his supporters frequently forget.

  The U.S. Supreme Court will be unable to dodge all the difficult issues raised by the Colorado case, even if they default to the general principle that “the people–not the courts– should decide.”  In the final analysis, our courts are essential to the protection of democracy and our institutions.  But they can only do so much, and the Colorado case will not mean the end of Trump.  The ultimate retirement of Trump and his minions can only occur at the ballot box.  Nonetheless, the Colorado case is significant if only because it indicates that state Supreme Courts are ready and able to take up the constitutional questions that must be resolved if this Republic is to survive. 

David Toscano is an attorney who practices in Charlottesville. He served as the Mayor of Charlottesville in the 1990s and held a position in Virginia's House of Delegates for fourteen years, including a seven-year tenure as Minority Leader. He has written numerous articles and two books: Fighting Political Gridlock: How States Shape Our Nation and Our Lives, University of Virginia Press, 2021, and Bellwether: Virginia’s Political Transformation, 2006-2020, Hamilton Books, 2022.