OPINION ANALYSIS

Supreme Court rules states cannot remove Trump from ballot for insurrection

The Supreme Court on Monday ruled that states cannot disqualify former President Donald Trump from the ballot for his role in the Jan. 6, 2021, attacks on the U.S. Capitol. In an unsigned opinion, a majority of the justices held that only Congress – and not the states – can enforce Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War to disqualify individuals from holding office who had previously served in the federal or state government before the war but then supported the Confederacy, against candidates for federal offices.  

All nine justices agreed that Colorado cannot remove Trump from the ballot. But four justices – Justice Amy Coney Barrett in a separate opinion and Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson in a joint opinion – argued that their colleagues should have stopped there and not decided anything more.

The court’s decision comes just one day before Super Tuesday, when 16 states and one territory will hold their primary elections. Trump currently holds an overwhelming lead in the race for the Republican nomination.

The dispute leading to Monday’s opinion began last year in a state court in Colorado. A group of voters in that state argued that Trump was ineligible to appear on the ballot under Section 3, which provides (as relevant here) that no one “shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State,” if that person had previously sworn, “as a member of Congress, or as an officer of the United States,” to support the Constitution but then “engaged in insurrection or rebellion” against the federal government.

A state trial court concluded that Trump had “engaged in insurrection,” but it rejected the voters’ request to remove him from the ballot. The presidency, that court ruled, is not an “office … under the United States,” and the president is not an “officer of the United States.”

The voters appealed to the Colorado Supreme Court, which agreed that Trump is ineligible to appear on the ballot under Section 3. But that court put its ruling on hold to give Trump time to go to the Supreme Court, which agreed early this year to weigh in.

In a 13-page unsigned opinion released shortly after 10 a.m., the justices reversed the state supreme court’s decision. The justices explained that the 14th Amendment was intended to expand the federal government’s power at the states’ expense. And in particular, they noted, Section 3 was designed to “help ensure an enduring Union by preventing former Confederates from returning to power in the aftermath of the Civil War.”

But before disqualifying someone under Section 3, the justices observed, there must be a determination that the provision actually applies to that person. And Section 5 of the 14th Amendment gives the power to make that determination to Congress, by authorizing it to pass “appropriate legislation” to “enforce” the 14th Amendment. Nothing in the 14th Amendment, the court stressed, gives states the power to enforce Section 3 against candidates for federal office, nor was there any history of states doing so in the years after the amendment was ratified.

Moreover, the court added, allowing states to enforce Section 3 against candidates for federal office could create a variety of problems. First, although Section 5 requires Congress to tailor any legislation that it enacts to implement Section 3 so that it specifically targets the conduct that Section 3 was adopted to prevent, state efforts to enforce Section 3 would not face this same limitation. “But the notion that the Constitution grants the States freer rein than Congress to decide how Section 3 should be enforced with respect to federal offices is simply implausible,” the court concluded.

Allowing states to enforce Section 3 for federal candidates could result in a scenario in which “a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record),” the court warned. And that could create a “patchwork” that could “dramatically change the behavior of voters, parties, and States across the country, in different ways and at different times.” “Nothing in the Constitution,” the court wrote, “requires that we endure such chaos.”

The court did not reach some of the other issues that Trump had urged them to decide in his brief on the merits – such as whether Trump “engaged in insurrection” on Jan. 6.

Barrett penned a one-page opinion concurring in part and concurring in the judgment. In her view, the court’s holding that states cannot enforce Section 3 against presidential candidates was “sufficient to resolve this case.” The court should not, she suggested, have weighed in on “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.”

And in a relatively rare move, she appeared to criticize the tone of the joint opinion filed by Sotomayor, Kagan, and Jackson, asserting that “this is not the time to amplify disagreement with stridency. The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.”

In their six-page joint opinion, Sotomayor, Kagan, and Jackson agreed with the result that the per curiam opinion reached – that Colorado cannot disqualify Trump – but not its reasoning. The three justices acknowledged that permitting Colorado to remove Trump from the ballot “would … create a chaotic state-by-state patchwork.”

But the majority should not, in their view, have gone on to decide who can enforce Section 3 and how. Nothing in Section 3 indicates that it must be enforced through legislation enacted by Congress pursuant to Section 5, they contended. And by resolving “many unsettled questions about Section 3,” the three justices complained, “the majority goes beyond the necessities of this case to limit how Section 3 can bar an oathbreaking insurrectionist from becoming President.”

On Dec. 28, Maine’s secretary of state, Shenna Bellows, ruled that Trump was ineligible to appear on the ballot there. But a state court judge put that ruling on hold in light of the Supreme Court’s decision to hear Trump’s appeal in the Colorado case. A judge in Illinois issued a similar decision last week, but that case is also on hold awaiting the outcome of the Supreme Court proceedings. Although the court did not say so expressly, those decisions will presumably be reversed in light of Monday’s decision.

Monday’s decision comes less than a week after the justices agreed to take up another case involving the former president. On Wednesday, the justices announced that they will hear argument in late April on whether Trump can be tried on charges that he conspired to overturn the results of the 2020 election. That decision is expected by late June or early July.

This article was originally published at Howe on the Court.