SCOTUS ballot ruling raises new questions even as it answers others
People demonstrate outside the U.S. Supreme Court in February. (Photo by Jahi Chikwendiu/The Washington Post)
The Supreme Court quickly and unanimously resolved a case this week that had divided legal scholars for months, clearing a path for Donald Trump to remain on the ballot for president nationwide. But in doing so, the justices unleashed new questions that could confront Congress and the courts after the November election.
The decision reversed a finding by Colorado’s top court that votes for Trump should not be counted in that state because he had engaged in insurrection and, as a result, was barred by the Constitution from holding office. Monday’s decision—issued a day before Colorado and 14 other states held their Super Tuesday primary elections—found that states cannot prevent candidates for federal office from running based on claims that they are insurrectionists.
All nine justices agreed on that point. A majority went further and said when it comes to federal offices, only Congress has the authority to enforce Section 3 of the 14th Amendment, the part of the Constitution that bars insurrectionists from office. The court’s liberals, along with conservative Justice Amy Coney Barrett, said the majority should not have tackled an issue it didn’t need to address.
The three justices nominated by Democratic presidents excoriated the conservative majority and accused it of trying to protect the court and Trump from “future controversy.” The majority’s reading of Section 3 effectively shut the door to using the provision to prevent future insurrectionists from holding federal office, the liberals argued.
But some legal scholars offered an additional critique, saying the court settled far less than it should have. By trying to address some questions, the majority created new ones, raising the possibility of a confusing and acrimonious post-election season, they said.
“They’ve introduced new uncertainty,” said Richard Hasen, a UCLA law professor and director of the university’s Safeguarding Democracy Project.
For instance, the decision leaves open the question of whether Congress could refuse to count electoral votes for Trump if it determines he committed insurrection during the Jan. 6, 2021, attack on the U.S. Capitol, Hasen said. It’s also unclear whether the Supreme Court can intervene in the unlikely event that that happens.
University of Notre Dame law professor Derek Muller agreed the majority opinion left the question muddled. Congress is slated to count electoral votes on Jan. 6, 2025, four years to the day after the assault on the Capitol by Trump supporters.
“This is an area of high uncertainty for me,” he said. “I think there’s no question the mood from the court is to discourage Congress from refusing to count electoral votes on January 6th. But it’s far from clear to me that that is foreclosed from Congress’s power.”
It’s highly unlikely such a circumstance would arise, Muller and Hasen noted. If voters elect Trump in November, they will likely also give one or both houses of Congress to the Republicans. Democrats would need to win both houses to control the counting of electoral votes. And even if they do oversee that process, many of them may be unwilling to attempt to block Trump from taking office, having spoken out persistently against Republican efforts to obstruct the vote counting in 2021.
But there remains a “nontrivial possibility” such a scenario could play out, said Rick Esenberg, the president of the conservative Wisconsin Institute for Law & Liberty. And if Congress were to refuse to count electoral votes, it’s unclear what would happen next, he said.
“The fact that they said it’s Congress’s responsibility, is that then the end of the line?” he said. “Or is that something that someone could appeal? The justices do not give us any clarity on that.”
Others saw value in the decision. Harvard law professor Lawrence Lessig argued in a column in Slate that the ruling shut down the possibility that Congress could refuse to count electoral votes for Trump. And, he wrote, the decision’s conclusion that Congress must pass a law before it can enforce Section 3 seems obvious.
“Rather than bash the court for its obviously correct judgment, maybe we should reflect a bit more carefully on how a campaign against this existential threat will be won: not in the courts, but at the ballot box,” Lessig wrote.
Trump on Monday praised the decision, emphasizing that the court had unanimously agreed states could not bump him off the ballot. “It was a very important decision—very well crafted and I think it will go a long way toward bringing our country together, which our country needs,” Trump said.
There likely remain narrow paths to keep those who engage in insurrection out of office, Muller said. Congress could pass a law that spells out the process for barring insurrectionists. But getting such a measure through the House and Senate appears extremely unlikely because of political gridlock.
The Senate could have prevented Trump from serving again if it had convicted him after the House impeached him in 2021, Muller noted. But not enough Republicans joined Democrats in deciding Trump’s actions were disqualifying.
Trump would be barred from office if he were convicted of the crime of insurrection. Trump has been charged with 91 felonies across four cases, but insurrection is not among the charges. Special counsel Jack Smith could seek to add that charge in a superseding indictment—but doing so would further delay a case that already may not go to trial until after the election.
While the Colorado case focused on Trump and the presidency, it also prompted questions about other federal offices. Congress could refuse to seat members if it determined they had engaged in insurrection, but there may be little appetite among members to try that, Muller said. And if they did, a messy legal fight could play out.
Monday’s decision allows states to prevent insurrectionists from holding state positions and some local offices. In 2022, a New Mexico judge removed a county commissioner from office because of his role in the attack on the Capitol, and Monday’s decision would allow rulings like that in the future. That means in many cases it will be much easier to remove a low-level official from office than a member of Congress if they are accused of insurrection.
Monday’s decision could generate more litigation, said Donald Sherman, chief counsel for Citizens for Responsibility and Ethics in Washington, the group that represented the Colorado voters who sued to keep Trump off the ballot.
If Trump wins the presidency, his opponents are likely to challenge his actions and policies in court by arguing he is an insurrectionist who can’t legitimately exercise power because of Section 3, he said. The Supreme Court would likely reject such lawsuits, but “the fact that this question has to be asked is exactly why the decision from the court is lacking,” Sherman said.
“The Supreme Court has opened a Pandora’s box with this opinion,” said Mario Nicolais, a Colorado attorney who worked on the case. “I think we will have extraordinary chaos in the months leading up to the election and on Election Day and post-election..”
Colorado Secretary of State Jena Griswold (D) said she was disappointed in Monday’s decision because she believes it makes it easier for insurrectionists to hold office. The decision, she said, leaves it to voters to decide what to do.
“I’ve never been holding my breath for the Supreme Court to save democracy,” she said. “That’s up to American voters this November.”
Sarah Ellison and Ann E. Marimow contributed to this report.
