Image Credits: @joshua_j_woroniecki on Unsplash (Unsplash License)

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It is no secret that former President Donald J. Trump is a controversial character. The legal debates surrounding Trump’s conduct are ever-growing as he finds himself tied up in lawsuits around the country regarding civil fraud and defamation. This controversy arguably came to a peak with a case that has reached the Supreme Court regarding his eligibility to hold office again, Trump v. Anderson.

Legal Background

On September 6, 2023, Colorado voters brought a lawsuit aimed to bar former president Donald Trump from appearing on their primary ballot. They asserted that since Section 3 of the Fourteenth Amendment prevents those who have “engaged in insurrection or rebellion” or given “aid or comfort” to insurrectionists from serving in federal office, Trump should be disqualified from the ballot due to his actions leading to insurrection on January 6, 2021. The Colorado voters alleged that he incited insurrection due to his aggressive allegations of election fraud and urging his supporters to march to the Capitol. On January 6, 2021, over 100 police officers were assaulted, four rioters died, and five police officers died on the scene or committed suicide in the months following. Over 800 of the rioters have either pled guilty or been convicted of federal crimes for their actions that day.

A Colorado trial court thus found on November 17, 2023, that Trump did engage in insurrection; however, they found that Section 3 does not apply to the office of the president and allowed him to stay on the primary ballot. Then, on December 19, 2023, the Colorado Supreme Court reversed this decision, asserting that Trump was disqualified via this clause and could not be listed on the primary ballot. On January 3, 2024, Trump appealed this decision to the Supreme Court which, on January 5, 2024, agreed to hear the case.

Supreme Court Petitions and Arguments

In their petition in support of reversal filed with the Court on January 17, 2024, Trump’s counsel echoed the lower Colorado court in declaring that the President is not an officer of the United States to whom Section 3 applies. Moreover, in other areas of the Constitution, the President is not listed as an officer; for example, in the Commissions Clause, the Constitution reads that the President “shall Commission all the Officers of the United States,” which Trump’s counsel utilized as further evidence that the President and Officers of the United States are different entities. This concept, which many dismiss, was popularized and accepted by the lower court, which found Professor Seth Barrett Tillman’s interpretation persuasive. Tillman is considered an outsider in the American legal community due to his “unusual interpretations” and also because he is a professor at the Maynooth University School of Law and Criminology, a university in Ireland, despite his nativity to America. Tillman submitted an amicus curiae brief in this case and asked the Court if he could argue to which they declined. His ideas, as well as those of Professor Josh Blackman of the South Texas College of Law Houston, were used by Trump’s counsel in their petition. Furthermore, Trump’s counsel argued that Section 3 does not give State officials the authority to seek disqualification, declaring that the Fourteenth Amendment is not “self-executing.” His counsel also asserted that Section 3 only disqualifies those who incited insurrection from holding office, not from seeking it. Finally, his counsel asserted that the First Amendment protects political parties’ right to select their nominees and participate in the electoral process, arguing that this would curtail the right of voters to select the candidate of their choice. Similarly, on January 18, 2024, Trump’s counsel filed their brief for the petitioner, relying heavily on Tillman’s “non-officer” argument. They also asserted that Trump did not engage in insurrection and restated their Section 3 qualms. 

The counsel for the Colorado voters submitted their brief on January 26, 2024. Beginning with an introduction counterarguing Trump’s claims regarding Section 3, they argued that “Trump identifies no plausible basis to evade disqualification under Section 3…Nobody, not even a former President, is above the law. This Court should affirm.” Their official argument began with a discussion regarding the fact that Trump’s counsel skated by the question of insurrection, therefore suggesting that they have no plausible defense against it. They thus argue as to why and how Trump engaged in insurrection against the Constitution, invoking photographic evidence, Trump’s tweets from that day, and witness testimony. The counsel for the voters argued that the First Amendment does not protect this action and speech. Furthermore, they then went on to counter Trump’s claims against the President being an officer of the United States, referencing Constitutional sections and clauses, judicial decisions, references to past Presidents as the “chief executive officer of the United States,” and even Trump’s acknowledgment that the President “is an ‘officer’ in its ordinary meaning.” With this, the counsel for the Colorado voters asserted that Section 3 is self-executing as evidenced by Constitutional doctrine and clauses, and the states’ police power to bar constitutionally unqualified candidates from the ballot. 

On January 31, 2024, Colorado Secretary of State Jena Griswold filed a brief as well. In it, she argued similarly to the voters, asserting that Colorado had the right and reason to take Trump off of the ballot and thus did not violate any Constitutional measures. On February 5, 2024, both the counsels for Trump and the Colorado Republican State Central Committee filed reply briefs, further arguing their points that the president is not an officer of the United States and that Section 3 is not self-executing without the hand of Congress. In Trump’s reply brief specifically, his counsel devoted a brief, section to him not having engaged in insurrection. They asserted that “The events of January 6 were not an ‘insurrection,’ as they did not involve an organized attempt to overthrow or resist the U.S. Government” and that even if it were to be considered an insurrection, Trump did not explicitly incite violence.

Oral Arguments

On February 8, 2024, a packed courtroom listened to oral arguments that ensued for more than two hours. Trump’s counsel, Jonathan Mitchell, echoed the petition in arguing that Section 3 could not be used to bar Trump from running for office as this section also provides the possibility that Congress could lift the ban on Trump taking office if he were to win. In response to a line of questioning by Chief Justice John Roberts, under this rationale, a state could not prevent a candidate from running even if they were to publicly admit to being an insurrectionist. Mitchell also argued that removing Trump from the ballot would “take away the votes of potentially tens of millions” of people. He asserted that this would create an undue strain on voters and their states in “accelerating the deadline to meet a constitutionally imposed qualification.” 

Jason Murray, for the Colorado voters, began his argument with an illustrative description of January 6, 2021, reiterating to the bench the “violent assault” that overtook the capital, adding that “For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power.” Because of his engagement to incite insurrection against the Constitution, Murray argued that the Court should create an exception for only him that would bar him from the ballot. The justices pressed Murray about his arguments, with Justices Clarence Thomas and Brett Kavanaugh specifically denoting the “plethora of Confederates” who were still able to be present in public life after the Civil War. Kavanaugh brought up Griffin’s Case, an 1869 decision from a lower court declaring that Section 3 could only be enforced through laws passed by Congress. To this, Murray asserted that there had been no need for disqualification during this period as virtually all former Confederates received amnesty by 1876, destroying the necessity for disqualification in the first place. And since then, he contended, there had been no reason to invoke Section 3 because the country had not previously experienced anything like the January 6 attacks.

Other justices were concerned with the implications of upholding the Colorado Court’s decision. Justices Elena Kagan and Amy Coney Barrett voiced their logistical and political worries regarding states being able to disqualify candidates from their ballot. Similarly, Justice Samuel Alito and Chief Justice Roberts noted the possibility of a potentially “cascading” effect of upholding the Colorado decision. If the Supreme Court were to rule that Trump can be removed from the Colorado ballot, Roberts said, it would undoubtedly lead to efforts to disqualify the Democratic candidate for president. “And some of those will succeed,” leading to a scenario in which only a “handful of states … are going to decide the presidential election. That’s a pretty daunting consequence,” Roberts concluded.

Attempting to calm some of the Justices’ worries, Colorado Solicitor General Shannon Stevenson (arguing on behalf of Colorado Secretary of State Griswold) asserted that Congress could act if it believed states had “run amok” with ballot access issues. She argued that we need faith in our system in handling allegations of insurrection and lack of ballot access. However, “after more than two hours of argument, the justices appeared uninclined to agree with Stevenson and leave the Colorado Supreme Court’s decision in place.”

Predictions and Final Ruling 

Before the ruling was released, Adam Liptak of the New York Times predicted that Chief Justice Roberts would try to seek consensus, correctly highlighting the Court’s desire “to keep Mr. Trump on state ballots without addressing whether he had engaged in insurrection or even assuming that he had.” Similarly, Nicholas Stephanopoulos, a professor of law at Harvard Law School, expected the Court to avoid holding that Trump is an insurrectionist who, therefore, couldn’t be president again. 

In line with Liptak and Stephanopoulos’ ideas and hurried by the 2024 primaries already beginning, on March 4, 2024, the Supreme Court issued their per curiam majority opinion. In the authorless opinion, the Court reversed the Colorado Supreme Court’s decision, allowing Trump to be on the ballot. Contextualized by a discussion of the Fourteenth Amendment, the Court asserted that Congress, not the states, has the power to execute the disqualification clause of the amendment regarding federal elections. They found that the amendment does not immediately delegate power to the states to take action against candidates for federal office, but can bar individuals from seeking state office. The states are more restricted in this vein, the Court argues, as to prevent issues with the scope of state power, needless removals from candidacy, and unreconcilable election differences between states. “The ‘patchwork’ that would likely result from state enforcement,” the Court wrote, “would ‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole.” “An evolving electoral map could dramatically change the behavior of voters, parties, and States across the country, in different ways and different times,” the unanimous opinion states. “Nothing in the Constitution requires that we endure such chaos– arriving at any time or different times, up to and perhaps beyond the Inauguration.”

Justice Barrett issued a two-paragraph concurrence, straying from the majority in declaring that the Court should not have discussed “the complicated question” of whether federal legislation is the only way for Section 3 to be enforced. This message of judicial restraint can be felt even more in Justices Sotomayor, Kagan, and Jackson’s concurrence. They found that the majority opinion decided a “momentous and difficult [issue] unnecessarily.” The three justices, taking a similar view as Justice Barrett, scorned the majority for their needless discussion of the unpresented question of how Section 3 should be enforced. They argued that federal legislation is not the only way to enforce Section 3 and that all of the “Reconstruction Amendments” (the Thirteenth, Fourteenth, and Fifteenth Amendments) are indeed self-executing. Regardless, the justices assert, the Court did not need to resolve this particular issue in this case, quoting Bush v. Gore, “‘What it does today, the Court should have left undone.’”

Looking Forward

This ruling effectively set up the second face-off between Trump and President Biden who both received nominations for the 2024 presidential election in March 2024. In the grander scheme, this ruling sets an important precedent for ballot access in the future– as of now, if there is no Congressional mandate, anyone is eligible for federal office. While this case is closed, Trump’s legal battles are far from over, with the Supreme Court recently agreeing to hear a case surrounding whether Trump is immune from prosecution on charges of plotting to overturn the 2020 election under the doctrine of presidential immunity. Nonetheless, we will see him on our primary ballots and on the general election ballot in November, and the future of ballot access is now a more forgiving one.