“It would not surprise me”: Experts on how Supreme Court may bail out Trump in Colorado and Maine

Media has “missed” key ways the right-wing court could decide the case without ruling on the merits, professor says

By Areeba Shah

Staff Writer

Published January 3, 2024 5:45AM (EST)

Donald Trump | Supreme Court | Voting (Photo illustration by Salon/Getty Images)
Donald Trump | Supreme Court | Voting (Photo illustration by Salon/Getty Images)

Former President Donald Trump's expected legal challenges to rulings in Maine and Colorado disqualifying him from the Republican primary ballot under the 14th Amendment are likely to end up before the Supreme Court, legal experts say.

Maine on Thursday became the second state to bar Trump under a rarely used Constitutional ban on “insurrectionists” holding public office for his role in inciting the Jan. 6, 2021, attack on the U.S. Capitol. Earlier this month, the Colorado Supreme Court issued a ruling removing him from the ballot.

These developments mark a notable win for Trump's critics, who argue that they are upholding a constitutional provision designed to protect the country from anti-democratic insurrectionists. 

“Every state is different,” Maine’s secretary of state, Shenna Bellows said Friday morning. “I swore an oath to uphold the Constitution. I fulfilled my duty.”

At the “heart of this issue” is the inherent tension between Section 3 of the Fourteenth Amendment, which arguably prohibits the president from engaging in “insurrection", and the right each state has to make “autonomous decisions” about their state’s respective electoral process, trial attorney Tom Bosworth told Salon.

“Whether the U.S. Supreme Court will take up this case will likely depend upon its resolution of this tension,” Bosworth said. “In a sense, this stuff touches upon federalism and the core power struggle between the states and the federal government that underlies much of our democratic process.”

For now, both of the decisions in Colorado and Maine are on hold. The Colorado Republican Party has asked the Supreme Court to look at the state’s decision, and Trump is expected to repeat this request in Maine, The Guardian reported

As the Supreme Court faces mounting pressure to rule on whether the former president’s actions on Jan. 6 constitutionally bar him from seeking a second term in the White House, legal experts are relying on the highest court to resolve this issue considering its significant public interest. 

“It is hard to imagine the Supreme Court would decline to take up the case of Trump‘s eligibility for president,” former U.S. Attorney Barb McQuade, a University of Michigan law professor, told Salon. “Interpreting the insurrection clause of the 14th Amendment is squarely in the wheelhouse of the US Supreme Court.”

Failing to resolve this issue would be an “abdication of its duties,” McQuade said. It would also seem to be fair to Trump that the court decides before the first primaries later this month. Otherwise, voters may be “disinclined” to vote for him, fearing that their vote could be considered “wasted” if a decision is reached later.

“Were the Court to take the case, it is more likely than not it will overturn the Colorado and Maine cases unless it concludes that there is something unique in the state laws that prevents them from ruling,” David Schultz, professor of political science at Hamline University, told Salon. “I think this is a slim possibility but it could happen.”

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Assuming the court takes the case, it will not rule on the “merits” regarding whether Trump engaged in insurrection, Schultz said. The court is “not equipped” to make this type of “fact-finding decision” and is only supposed to rule on matters of law. This begs the question of how then would the court overturn the decisions in Colorado and Maine.

One way is that the Supreme Court could overturn the state decisions and say that the Insurrection Clause bars a person from serving as president and not running for office or from appearing on the ballot in a primary, Schultz pointed out. “Hence, this constitutional provision does not apply, at least not yet.”

Additionally, the court could “confine” its decision to the two states, opting for a minimalist approach, or it could broaden its decision to apply to all states, presenting a more maximal stance asserting that the clause “does not apply to the presidency or that it is not self-executing.”

Another way is that the court could rule that the Insurrection Clause is not self-executing and that it requires some enabling legislation by Congress for it to take effect, he continued. 

“Third, it could rule that the Insurrection clause does not apply to the president since the presidency is not one of the offices named in the clause,” Schultz added. “There has been a lot of debate surrounding this clause, with some arguing that the clause effectively amends the qualification to be president or that of course the president is an officer of the US.”

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But what has so far been “missed” in terms of this last argument are two major points, he said. The Supreme Court could argue that the Insurrection clause does not apply to the president and that there is “no indication” that the authors of the 14th Amendment meant to change the basic qualifications for the president.

“How then would we check to prevent a person who engaged in insurrection from becoming president,” Schultz questioned. “The answer is the electoral college.”

Take note of how the Insurrection Clause mentions electors for the Electoral College, he explained. The framers of the 14th Amendment wanted to “prevent insurrectionists from picking the president.”  

Given the significant role the Electoral College and electors played in selecting the president,  the framers assumed electors would not choose an “unqualified or insurrectionist” person to be president, Schultz said.  

It’s unclear yet how the Supreme Court may rule on the matter considering it has not issued a decision on the 14th Amendment’s insurrection clause since it was ratified in 1868.

“On one hand, the Supreme Court may view the issues here as ones reserved for each state to decide, as Colorado and Maine have already done,” Bosworth said. “On the other hand, it would not surprise me if the U.S. Supreme Court sought to wade into the thorns here, particularly given the lack of precedent for any situation like this and the direct applicability of a core constitutional issue under the Fourteenth Amendment.”

By Areeba Shah

Areeba Shah is a staff writer at Salon covering news and politics. Previously, she was a research associate at Citizens for Responsibility and Ethics in Washington and a reporting fellow for the Pulitzer Center, where she covered how COVID-19 impacted migrant farmworkers in the Midwest.

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