How Will the Supremes Rule about Trump Being on the Ballot?

The liberty principle for this Freedom Friday is the duty of the United States Supreme Court to determine constitutionality of laws. Today the Supreme Court heard arguments in Trump v. Anderson, a case brought by activists in Colorado trying to keep the name of Donald Trump off the ballot. The justices listened to arguments for 80 minutes and asked numerous questions about the consequences of Colorado or any other state having the opportunity to choose whose name should be on the ballot.

The justices all asked tough questions on both sides with the lawyer for the activists struggling at times to answer the questions. The toughest questions seemed to come from the liberal justices. Hans von Spakovsky, a senior fellow at The Heritage Foundation, wrote about the appearance. 

The essence of the case is the decision by four justices of the Colorado Supreme Court, over the dissents of three colleagues, that because Trump engaged in an “insurrection” on Jan. 6, 2021, he is disqualified from being president under Section 3 of the 14 Amendment to the Constitution and thus may be removed from the ballot.

If the U.S. Supreme Court upholds the Colorado high court’s decision, it would disenfranchise millions of voters in Colorado and other states that follow Colorado’s misbegotten action, a concern raised by more than one justice during Thursday’s arguments. Those voters would have their right to choose who they think should be president taken away from them by a small group of state court judges and partisan election officials.

One could see the difference almost immediately in the opening statements of the two sides. Jonathan Mitchell, the former solicitor general of Texas who was arguing on behalf of Trump, presented a constitutional argument on why Colorado and other states don’t have the authority to enforce Section 3 against a federal candidate.

Mitchell also argued that the provision in the 14^th Amendment doesn’t apply to Trump because the former president doesn’t fil the precondition of being a former “officer of the United States” since he was elected, not appointed, to a federal office.

Mitchell spent a large part of his allotted time answering questions about the constitutional basis for that precondition, along with questions about whether Section 3 can be enforced when no federal legislation provides for that enforcement.

It is always difficult to determine how the justices will rule from the questions that they ask. I am a non-lawyer, but the questioning seemed to me to be quite negative toward the side of Colorado. Most experts expect the Supreme Court to hand down their ruling in a matter of days or weeks rather than in June as they do with most decisions.