On Thursday, the Supreme Court will consider whether former President Donald Trump may lawfully be disqualified from states’ ballots for his conduct leading up to the assault on the Capitol on Jan. 6, 2021. The justices will pose probing questions to attorneys for both sides. Weeks later, journalists will begin eagerly refreshing the court’s webpage—the opinion will be released, and headlines will light up smartphones nationwide: President Trump Allowed on the Ballot, Says Supreme Court.
The Supreme Court will not allow states to disqualify the presumptive Republican presidential nominee from their ballots under Section 3 of the 14thAmendment, which bars insurrectionists from holding high office. The justices—in the midst of internal scandal and public scorn—would risk too much by endorsing states’ controversial decisions to remove the former president from ballots, particularly given how difficult it would be to enforce any ruling knocking Trump out of ballot counts nationwide. The outcome of the case is a near certainty—the U.S. Supreme Court will overrule the Colorado Supreme Court, which in December determined that Trump is disqualified from the state’s ballot. The route the U.S. Supreme Court will take to reach that conclusion is not, and the court’s reasoning will make all the difference.
There are multiple grounds on which the court may rely when it authors an opinion keeping Trump on the ballot. Some options are impractical. Others are dangerous. The wrong path will have consequences that last beyond the coming election.
The court should not proclaim that Trump was a nonparticipant in the violent attack on Jan. 6. A decision rejecting the lower court’s holding that Trump “engaged in insurrection” will serve as a public defense of the former president’s actions as he defends himself from federal criminal charges for the same conduct. As a matter of law, the questions of whether Trump “engaged in insurrection” for the purposes of a Section 3 disqualification and whether he “conspire[d] … to defraud the United States” for the purposes of special counsel Jack Smith’s prosecution are distinct. In the court of public opinion, they may not be. A Supreme Court opinion that washes Trump’s hands of his involvement in insurrection wades too far into his other ongoing legal issues.
Advertisement Advertisement Advertisement AdvertisementThe Supreme Court might hold that the disqualification clause doesn’t apply to the presidency. That would also be a mistake. Although the clause’s language (“No person shall … hold any office … under the United States … [who] engaged in insurrection”) does not expressly include a former U.S. president, its plain meaning would have to be stretched thin to provide cover for insurrectionary presidents looking to return to office. Reading the disqualification clause as stopping at the doorstep of the nation’s highest office undercuts the intent of the drafters of the Reconstruction-era 14thAmendment. Worse, the holding would render the disqualification clause useless when it is most essential: protecting the republic from would-be despots clinging to the most powerful position in our nation.
AdvertisementThe court will further consider whether the disqualification clause cannot be applied by the states without prior authorization from Congress. Deciding along those lines would be wrong, as a legal matter, and would erode public trust in the Supreme Court as a faithful agent of the Constitution. The disqualification clause does not require legislative action to breathe life into its words. Although Congress may pass laws enforcing the guarantees of the 13thand 14thamendments, legislation is not a requirement for the provisions to have power. The Supreme Court would short-circuit the constitutional question by wiring the problem of disqualification back into an elected body.
AdvertisementOther options will only prolong the debate about Trump’s eligibility for the ballot. The court might decide that disqualification requires a full, adversarial hearing that allows an affected candidate to make their own full-throated defense. That decision would fracture the issue into more state court cases as the clock ticks down through primary election dates and into the general election. Alternatively, the court could declare that the topic of presidential eligibility is simply too political to be decided by a judicial system filled with judges serving unelected lifetime appointments. That choice would create two sets of outcomes that turn on whether a state’s court system or a state official, like its secretary of state, is authorized by that state’s constitution to carry out disqualification: Trump would remain on the ballot in states like Colorado but would be excluded in states like Maine. These solutions are half measures that might keep the question of disqualification in the court system for months. For the highest court, that is no solution at all.
Advertisement AdvertisementHow can the Supreme Court evade falling into the traps of so many bad options? The court should write that states’ disqualification of Trump is an unconstitutional burden on the associational rights of voters and the Republican Party that would soon select him as their candidate.
Advertisement AdvertisementThe First Amendment protects the rights of individuals, including political parties, to associate for the advancement of their beliefs. When considering burdens placed by states on political parties’ ability to nominate their preferred candidate, courts embark on a balancing test that pits the asserted state interest against the correlated burden on associational freedom. The state interest in applying the disqualification clause is strong: Their decision goes to the heart of democratic legitimacy and avoiding authoritarian rule in the country. The burden posed by disqualifying Trump, however, may weigh even more heavily. A state’s decision to disqualify the presumptive nominee of a major political party deprives a significant portion of citizens of their ability to cast a vote for their preferred candidate. Especially in a nationwide election, the determination of a few key states to disqualify a candidate could tip the outcome of an election. The burden reaches into states that did not disqualify Trump and could render meaningless the Republican Party’s nationwide nomination. The Supreme Court should issue an opinion in favor of Trump that weighs the burden of disqualification on his would-be voters more heavily than Colorado’s interest in keeping an insurrectionist off its ballot.
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Read MoreAn opinion based on associational rights will not be easy for the justices to write. The decision would strain the boundaries of the court’s prior holdings about how states may exercise their presumptive control over ballots. Previous litigants have failed to leverage associational freedoms to invalidate state laws that reject write-in candidates and impose limits on which candidates may receive a party’s nomination. Why should the disqualification clause—an unambiguous command, a more recent invocation of the nation’s will than the First Amendment, and a fortification against authoritarianism—fall to associational freedoms when other qualifications for office have not?
AdvertisementThe Supreme Court may answer that Trump’s disqualification creates a burden of unprecedented scale. Similar cases in the court’s history that invoke voters’ associational freedoms have lived in the margins of elections: procedures that concern early filing deadlines or nomination rules designed to constrain third-party and independent candidates. Trump’s disqualification is central. The volume of voters’ support and the Republican Party’s investment into Donald Trump have created a ballooning burden that sets this case apart from others in which associational freedoms have failed to carry the day.
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Any of the court’s possible dissenting voices would have a strong retort. The disqualification clause rises above the question of balancing voters’ rights and states’ interest. That inquiry should be reserved for state laws in tension with the First Amendment. The disqualification clause was passed by Congress, ratified by the states, and sewn into the fabric of the Constitution nearly a full century after the First Amendment’s guarantees were enshrined in the same document. The amendment changesthe Constitution. It pushes aside earlier language that might be read to conflict with it and makes a straightforward rule that insurrectionists cannot hold office, regardless of their supporters.
Advertisement AdvertisementThe court’s majority may respond that all parts of the Constitution should be read in harmony. The Constitution’s earlier language gives shape to its amendments; here, the First Amendment defines the outer limits of states’ powers of disqualification. An unconstitutionally severe burden on voters’ rights cannot support Colorado’s disqualification of Trump.
Relying on associational freedom avoids turning the disqualification clause into a powerless provision. It avoids making a sweeping statement about Trump’s culpability for inciting violence on Jan. 6. It might even maintain the legitimacy of a Supreme Court that is fighting its own battle in the public eye. For a court whose decision is a foregone conclusion, this route represents the only palatable choice.
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李宇春
谢顺福
白松
