By Derek T. Muller
Momentous questions for the U.S. Supreme Court and momentous consequences for the country are likely now that the court has announced it will decide whether former president and current presidential candidate Donald Trump is eligible to appear on the Colorado ballot.
The court’s decision to consider the issue comes in the wake of Colorado’s highest court ruling that Trump had engaged in insurrection and therefore was barred from appearing on the state’s GOP primary ballot by Section 3 of the 14th Amendment to the U.S. Constitution. Maine’s secretary of state also barred Trump from the state’s primary ballot, and more than a dozen other states are considering similar moves.
The Conversation’s senior politics and democracy editor, Naomi Schalit, spoke with Notre Dame election law scholar Derek Muller about the Supreme Court’s decision to take the case, which will rest on the court’s interpretation of a post Civil War-era amendment aimed at keeping those who “engaged in insurrection or rebellion” from serving in political office.
Scott Olson/Getty Images
On a scale of 1 to 10, how big is this?
In terms of potential impact, it’s a 10. It is excluding a former president from appearing on the ballot for engaging in insurrection.
That’s monumental for several reasons. It’s the first major and material use of this provision of the Constitution since the Civil War. It’s the first time it has kept a presidential candidate off the ballot, much less a former one and the apparent front-runner for the Republican Party nomination.
But on the flip side, what are the odds of that actually happening? That’s more speculative. And so the number is probably less than 10. This was an extraordinary major decision from the Colorado Supreme Court. But you have to temper that by saying, well, there’s a chance it gets reversed, and then Trump appears on the ballot and this mostly goes away.
What are the risks here for the court? Legal scholar Michael W. McConnell at Stanford said in The Washington Post, “There is no way they can decide the case without having about half the country think they are being partisan hacks.”
This is a binary choice that either empowers the Republican candidate or prevents voters from choosing him. So when you have a choice in such stark, political and partisan terms, whatever the Supreme Court is doing is often going to be viewed through that lens by many voters.
I think it’s a reason why there will be as much effort as possible internally on the court to reach a consensus view to avoid that appearance of partisanship on the court, that appearance of division on the court. If there’s consensus, it’s harder for the public to sort of point the finger at one side or another.
That’s much easier said than done. The court decides questions with major political consequences all the time. But to decide the questions in the context of an upcoming election feels different.
The justices granted only Trump’s appeal to consider the case, not the Colorado Republican Party’s. Is this significant, and if so, how?
The Colorado Republican Party and the Trump campaign were on two different tracks in their appeals. When you grant both cases, you invite two sets of attorneys and parties to participate and add complexity. I think the decision to grant only Trump’s case is a decision to make this as streamlined a process as possible.
Will whatever decision the court makes put to rest the ballot access questions in all the other states?
There are a couple of very narrow grounds the court might rule on. For example, they might say, we’re not ready to hear this case because it’s only a primary, or Colorado so abused its own state procedures as to run afoul of federal constitutional rules. Those would be kind of rulings only applicable to the Colorado case or only applicable in the primaries.
There’s a chance the court does this, but my sense – not to speculate too much – is that’s going to be deeply unsatisfying for the court, knowing that if they delay in this case, another case is likely coming later in the summer where these questions will have to be addressed in August or September. That’s much closer to the general election. Those are months when the court is in recess, and they would have to come back from their summer vacation early. So my sense is that the court will try to resolve these on a comprehensive basis. They’ve scheduled oral argument on Feb. 8, 2024 so they want to move on as quickly as possible to put this to rest.
AP Photo/Jon Elswick
You submitted an amicus brief in the Colorado case for neither side. What was it you wanted to tell the court?
I raised two general points and then one specific to Colorado. The two general points are that I think states have the power to judge the qualifications of presidential candidates and keep them off the ballot. And states have done that over the years to say if you were born in Nicaragua, or you’re 27 years old, we’re going to keep you off the ballot.
But I also say states have no obligation to do that. You can look throughout history, going back to the 1890s, where ineligible candidates’ names have been printed and put on the ballot. And this isn’t a question of whether or not the state wants to do it – they have the flexibility to do it. So I wanted to set those two framing questions up so the court doesn’t veer too much in one direction or the other to say “states have no power,” or “of course states have power regardless of what the legislature has asked them to do.”
The point specific to Colorado is I doubted there was jurisdiction in Colorado for the state Supreme Court to hear this case, but the court disagreed with me.
What could happen during the period between now and the court’s decision that could be consequential?
More states are going to consider these challenges as the ballot deadlines approach. And we know that there’s Super Tuesday the first Tuesday of March when a significant number of states hold presidential primaries. So I think there’s a lot of uncertainty in the next six weeks about which states might exclude him.
On top of that is voter uncertainty. Voters are making their decisions and weighing the trade-offs of who to vote for. Right now, this is a cloud hanging over the Trump campaign. It’s not just that he’s been declared ineligible in Colorado and Maine. It’s the question in other states for other voters: Am I wasting my vote, is this actually an ineligible candidate? Should I be voting for somebody else?
That’s not an enviable position for voters to be in – that they might cast their ballots only to find out later that they’re not going to be counted.
Derek T. Muller is Professor of Law at the University of Notre Dame.
The Conversation arose out of deep-seated concerns for the fading quality of our public discourse and recognition of the vital role that academic experts could play in the public arena. Information has always been essential to democracy. It’s a societal good, like clean water. But many now find it difficult to put their trust in the media and experts who have spent years researching a topic. Instead, they listen to those who have the loudest voices. Those uninformed views are amplified by social media networks that reward those who spark outrage instead of insight or thoughtful discussion. The Conversation seeks to be part of the solution to this problem, to raise up the voices of true experts and to make their knowledge available to everyone. The Conversation publishes nightly at 9 p.m. on FlaglerLive.
Kat says
It is still unfathomable to me that justice Thomas can be allowed to participate in any case involving the events or people connected with the insurrection. His complete lack of ethics (in multiple instances), and the fact that he still a justice has made me lose my respect for the Supreme Court.
Pogo says
@Consider this
Poison in a water bottle
https://fedsoc.org/contributors/derek-muller
DaleL says
Just for reference, Citizens for Responsibility & Ethics in Washington (CREW) has a report on the history and previous disqualifications because of Section 3 of the 14th Amendment. Although the number is small, it does provide an interesting history. First, because there have been disqualifications indicates that Section 3 has been self enabling and has not required additional legislation. Second, only 3 of the 8 people identified in the report, had been convicted of a crime. So clearly a conviction for a crime has not been required.
The 14th Amendment was ratified in 1868. Congress passed the Amnesty Act in 1872. Between 1868 and 1872, ex-Confederates flooded Congress with thousands of amnesty requests to remove their Section 3 disqualification.
I would think that voters (as in Colorado) and/or opposing candidates should have standing to sue to keep an unqualified candidate off the ballot. I hope that the Supreme Court rules this to be the case. I also hope that the Supreme Court upholds the decision of the Colorado Supreme Court. This would provide a clear judgement that Mr. Trump cannot be on the ballot in Colorado or elsewhere because he is disqualified from holding any government office.
Mr. Trump took an oath to “protect” and “defend” the Constitution of the US. He did not uphold his oath. It was Vice President Mike Pence who honored his oath and called in the National Guard to restore order on January 6th.
Judith Michaud says
Mr. Trump has been focused on changing our Constitution since 2016 ! This is a good place for him to start! I cannot imagine the SCOTUS will go against the 14th Amendment, let alone the wishes of the voters because it was the voters in Colorado and Maine that asked for him to be removed from their state’s ballot! Their decision is crucial for our democracy! I hope they put the people before party!
Ed P says
Regardless of all the speculation, the SCOTUS decision will leave 1/2 the country unhappy. The controversy will rage on whether it’s a yay or nay.
How can this be healthy for our country? Would it have been better for our democracy if the issue had never been raised?
Sometimes, all the rhetoric, both left and right, appears to be creating issues that simply keep the caldron boiling. I ask myself if it’s worth it.
Sherry says
@ ed p. . . Is our democratic Republic “worth it”? Because defining whether we are a nation of laws based on our constitution VS a nation of “mob rule” is precisely what is at stake here. You bet ya it is worth it!!
Ed P says
Sherry,
No not the laws. I absolutely agree with you, but I’m referring to decisive rhetoric and venomous interactions. Where are all the adults? Each side looks to “one up” the other. Name calling and gamesmanship rules the day. Always looking to denigrate the opposition. Vanquish them, don’t debate and find common ground.
Why is it that everything threatens our democracy when in fact it does not. Everything is a constitutional crisis, when it is not. Every issue gets highjacked and perverted by one side or the other.
If it’s not racist, it’s homophobic, or it’s xenophobic, or misogynistic, or Islamophobia, or it’s white supremacy…ect. Our elected officials are routinely called names. Respect and decorum have left the building.
My point is why not celebrate how far we’ve come as a nation, while admitting things are not perfect but we have made progress. Regardless of the administration, we are never going to be rocketed back into the dark ages because we the people will never let that happen.
Ray W referred to yellow journalism last week. Family and friends fear discussing politic and religion. It’s been around for a century and I believe that many people are influenced by its exaggerations and biases. It’s both conservative and liberal.
Edith Campins says
Reading your comment brought to mind a time when we could discuss politics and things in general, with family and friends and do so civilly. I find that although I can be civil in such discussions, they quickly degenerate when I refuse to change my beliefs to comply with theirs. I am content to act in support of my beliefs without throwing them in anyone’s face. What worries me the most, for the future, is when I hear people state theories as fact, spout factless conspiracy theories, ignore science and totally abandon any type of critical thinking. I can find plenty of things I don’t agree with “on my side”. With many, I am confronted by absolute belief of everything “on their side”. I t seems that if they question any part of their beliefs, even in the face of facts, they feel threatened. Perhaps because if they did so they may have to start to further question those beliefs. And, the propensity for their support of those beliefs to resort to violence is frightening.
Sherry says
Dear Edith,
Thank you so much for giving us an account of your personal experience when “trying” to discuss political differences with others. I can so identify with your story, and feel much the same way. There have been many times when commenting here that I have been too strident in my frustration when trying to convince others to at least start the debate with credentialled facts.
For me, if we don’t have a foundation of factual honesty for a discussion then we are wasting our time with the emotional dishonesty of “culture wars.” I have compassion for the innocent addicted victims of 20+ years of FOX misinformation/disinformation/propaganda. I have seen, in the age of trump, the fear filled angry “doubling down” of that misguided thinking.
While living for 18 years in Flagler Beach, I missed being able to respectfully have a conversation about factual differences in government policies and justice. I missed having advice on how to “do the right thing” for all involved. I missed respectful neighbors and community closeness. I was forced to move away from the state I was born in. . . in order to feel safe and peaceful.
I do not know where the solution lies . . . what will bring us back together. I just pray that it happens peacefully and SOON!
Sherry says
@ed p. . . While I most certainly agree with you that it seems the media hyped “extreme rhetoric” and name calling only fuels division in our country. . . it is quite interesting to me that your examples only include name calling by those who feel oppressed on the Left. While somehow you missed calling out the name calling, lack of decorum, conspiracy theories, lies, violent attack on our capitol, etc. by the “extreme right”.
It is my opinion that the ‘new tactic’ from FOX of . . . mind control from Obi Wan Kenobi of Star Wars= “there is nothing to see here”, is being used and spread. The ploy of “let’s all come together and “pretend” that things like slavery did not happen, or Jan. 6th was just a protest that got carried away” is obvious. Ed. . . you certainly have a point of view, but it is NOT balanced or neutral.
Hopefully, others will read between the lines and see your true intent and biases.
Ed P says
Thanks for proving my point
Sherry says
@ed p. . . Consider the possibility that if my calling for a more balanced, open minded discussion. . . citing examples of name calling on “BOTH” sides somehow feels offensive to you. . . perhaps I struck a nerve of uncomfortable truth.
We cannot come together as a nation and defeat the hyperbolic beast of propaganda/dishonesty/disinformation in the media until we are willing to honestly move away from being emotionally manipulated by those media outlets, and seek “credentialled facts”. I personally rely on PBS and APNEWS for factual information.
I will continue to point out when others are victims of being intellectually/emotionally manipulated, and are dishonest in their postings here. Certainly, in fairness, I invite anyone that wishes to post “credentialled facts” that disprove my factual representations to do so.
As an educated, experienced, evolving woman, I always relish continuing my education. Many of the people who post here such as “Skibum”, “Dale L”, “Dude”, “Ray W” and “Nancy N”. . . and, many others. . . have, over the years, added to my legal/factual understanding, as well as my logical reasoning. I certainly wish the same for you, ed.
How does that saying go. . . “the truth will set you free”! Happy New Year!
Ed P says
Let me explain that I am not as cocked sure about my views as you seem to be about yours. I always leave room to be wrong. Do you? We are all like fruit on a tree, when we are green(learning) we grow, when we are ripe, we rot.
I’m not as rigid about accepting your views or ideas as you are of mine. I get it, are you right, because you just know it?
Re-read my posts above. The reason I did not include names that the right call the left is because I don’t use any because they are not in my vocabulary. Can you say the same?
Exactly what truth do speak of?
Sherry says
@ed p. . . I find your excuse for not calling out the extreme right in your original post to be weak at best, or simply disingenuous. You “could” have called out the Tucker Carlson styled rants/lies on FOX for example. Those broadcasts do not use words that are not in your vocabulary, but they are extremely powerful in their influence over millions of Americans. Or, you could had simply said “anything” negative about the “right winged media”. . . but, you did not.
Going forward, perhaps it is time to open your heart and mind to those who are crying out in the pain of feeling oppressed by. . . what did you say?. . . racism, homophobia, white supremacy, misogamy, and xenophobia. What precisely do you consider to be wrong with speaking out loudly about such inhumane treatment of our fellow human beings? It’s not the “speaking out” that is dividing us. It is the actual “ACTIONS” of racism, white supremacy, misogamy, and xenophobia that has our entire country divided against itself.
Sherry says
@ ed p . .OH, and the “truth” I speak of is the fact that inhumane, fear and hate filled racism, homophobia, white supremacy, xenophobia, antisemitism, islamophobia, etc. “IS” happening in our country every day. We, each one of us, should be speaking out against it!
Pogo says
@FWIW, and to whom it may concern
Is you, or ain’t you
https://www.google.com/search?q=yellow+journalism
Related
As stated
https://www.google.com/search?q=false+choice
As stated
https://www.google.com/search?q=moral+panic
As stated
https://www.google.com/search?q=manufacture+of+consent
Skibum says
The Republicans cannot even get on the same page with their messaging about the immunity issue. While Trump continues to rail on about having full and complete immunity from prosecution for what he did when he was president, all of the other GOP presidential candidates, with the exception of Christie, are telling potential GOP voters they would pardon Trump if elected. So apparently THEY must believe that Trump committed crimes, just like Nixon committed crimes that prompted the pardon by President Ford. You don’t talk about pardoning someone who is innocent!
Sherry says
@Skibum. . . What a truly excellent point! Of course the Republicans all know that trump is a traitor and “guilty” of many crimes against our nation and our sacred democracy!
Dennis C Rathsam says
Whats really evident is we were all better off 4 years ago! Thruth be told. No wars, cheap food & gas, no one invaded anothers country, no banks failed, plenty of baby formula. We didnt have all these homeless people living on the streets, in the cold, snow & rain. Our country is being destroyed by one man. He has opened the border, allowed millions of unvetted people into the USA! Are they terrorists, or sex trafficers, or maybe the donkeys that bring the drugs into the US. All these single, military age men are crossing and being set free. with no problem. What will happen if they start destroying the US from within? Maybe the Hoover Dam, or our electric grid? What happens if they start an army, & start murdering America citizens? We have no clue for whats instore for us in the incomming year. I pray to god this wont happen, but if it does, I want a president with the balls to save us, not one who,s on vacation on the beach half the time, or the one that cant find his way off the stage after a speech. Ya,ll voted for Biden, because of your hate for Trump! Howd that work out for America. We are in total kaos, at home & abroad, open your eyes to reality, this country,s a mess. Do we continue watching China, Russia, Iran, & N Korea piss on our president, or do we do what our forefathers did & fight for our freedom. Make America Great Again!
Sherry says
@ dennis. . . here is your quote from just a couple of days ago:
I call it a good speech, plain & simple. Can we start the new year without political bias?
Now, we have this extremely politically biased rant/screed. . . didn’t take you long. As suggested before: counseling and switching to PBS could bring you some peace.