DENVER (AP) — Former President Donald Trump scored a clear win at the U.S. Supreme Court on Monday, which unanimously ruled that states don’t have the ability to bar him — or any other federal candidates — from the ballot under a rarely-used constitutional provision that prohibits those who “engaged in insurrection” from holding office.
The decision shuts down a push in dozens of states to end Trump’s candidacy through a clause in the 14th Amendment, written to prevent former Confederates from serving in government after the Civil War.
But it may open the door to further electoral uncertainty, exposing more state officials to disqualification under the provision and setting up a constitutional showdown should Trump win the election.
Facing four separate criminal trials, Trump’s legal peril may just be beginning. So is the Supreme Court’s role in that process.
Here are some takeaways:
A TECHNICAL, BUT STILL BIG, WIN
The most significant thing the court did Monday was to overturn a Colorado Supreme Court ruling from December that Trump was not eligible to be president because he violated the insurrection clause, Section 3, of the 14th Amendment.
Colorado’s high court had stayed its ruling until the Supreme Court acted, so Trump remained on the ballot there and in two other Democratic leaning states that also had disqualified him, Maine and Illinois. But if the Supreme Court had let the Colorado ruling stand, it could have triggered a new wave of litigation that might have left Trump disqualified in a checkerboard of states across the country.
Those who sought to strike Trump from the ballot argued that would have been justified. They contend he’s clearly no longer qualified to be president due to his role in the Jan. 6, 2021, attack on the U.S. Capitol.
The high court avoided addressing that politically contentious issue. The ruling is almost devoid of references to Jan. 6 or insurrection, and doesn’t address whether Trump committed such an act by sparking the attack on the Capitol. Instead it focuses on the technical, procedural question of who gets to decide an election challenge under Section 3.
All nine justices agreed that is the purview of Congress. But a narrower majority of five went further, ruling it can only be done through legislation. That exposes significant splits underneath the unanimous majority, and points toward the greatest uncertainty the ruling creates.
A TIME BOMB FOR JAN 6, 2025?
One possible outcome that the case presented was the prospect of unelected judges disqualifying the man dominating one party’s presidential primary who has already received hundreds of thousands of votes in the nominating process.
But another potential nightmare is if that, if Congress is the only entity that can determine whether a presidential hopeful is indeed disqualified for engaging in “insurrection,” that it makes that determination on Jan. 6, 2025, when required to certify a possible Trump victory in the presidential election.
The high court shut down the first possibility, but may have left the door open to the second one, an issue that has hung over the case from the start. The five-justice majority — all from the court’s conservative wing — said Congress can implement Section 3 through legislation, “subject of course to judicial review.” (That means the court reserves for itself the right to have the final say.)
That triggered a dissent from the court’s three liberals, who complained that that “shuts the door on other potential means of federal enforcement.” That would appear to include a rejection of Trump’s electors should he win the election.
But there’s enough uncertainty in the ruling that some legal experts worry the door is still open to a constitutional crisis after the election, should Trump win. Rick Hasen, a UCLA law professor, cowrote a brief to the court urging it to not kick the decision to Congress and resolve the Section 3 controversy before Election Day.
On Monday, he was still nervous. “We may well have a nasty, nasty post-election period in which Congress tries to disqualify Trump but the Supreme Court says Congress exceeded its powers,” Hasen wrote.
FEELING THE HEAT
The 14th Amendment case is one of two putting the high court squarely in the midst of the ongoing presidential election. Last week, the court agreed to hear Trump’s appeal of a federal ruling that he’s not entitled to immunity from criminal charges for his attempt to overturn the 2020 election.
Trump’s trial on those charges was originally scheduled to begin Monday, but has been postponed because of the battle over his immunity challenge. The high court taking up his appeal in late April raises the possibility that trial won’t conclude until after the presidential election.
That has put the court in the middle of the nation’s partisan divide, and the justices’ discomfort with that came through in a brief, but remarkable, concurring opinion by Justice Amy Coney Barrett.
Though one of the court’s conservatives, she didn’t agree with the majority’s ruling that Congress can only enforce Section 3 through legislation. But she didn’t want to sign onto the liberals’ dissent, either, instead warning against focusing too much on partisan divisions.
“In my judgment, this is not the time to amplify disagreement with stridency,” Barrett wrote. “The Court has settled a politically charged issue in the volatile season of a Presidential election. Particularly in this circumstance, writings on the Court should turn the national temperature down, not up.”
“For present purposes, our differences are far less important than our unanimity: All nine Justices agree on the outcome of this case,” she concluded. “That is the message Americans should take home.”
ACTION IN THE STATES
The court’s ruling shuts off using Section 3 against federal officials absent action by Congress — which hasn’t even passed a budget in years and is unlikely to pass far-reaching legislation on the provision anytime soon.
But it leaves wide open the ability of states to use the provision against their own state officials, noting there’s a rich record after the Civil War of just those sorts of actions. That’s already begun anew in the post-Jan. 6 era. The first disqualification under Section 3 in more than a century came in 2022, when a New Mexico court removed Couy Griffin, who was convicted of entering the Capitol on Jan. 6 while leading a group called “Cowboys for Trump,” from his rural county commission.
The group that brought that case, Citizens for Ethics and Responsibility in Washington, next filed the Colorado case against Trump. They said they were eager to continue filing Section 3 cases against lower-level Jan. 6 participants, but felt they had to take on Trump because he was running for president again.
So far there’s nothing stopping CREW or any other litigant from pursuing Section 3 cases against state and local officials. Legal observers have warned the provision could be used in non-Jan. 6 contexts as well — Republicans have argued they could apply it against Biden, for example, for failing to secure the border, or Vice President Kamala Harris for raising bail funds for those jailed in the unrest following George Floyd’s 2020 murder.
Clearly, there is still life in what had been a long-dormant provison of the Consitution. At least for a while — Griffin has appealed his removal to the Supreme Court, and its next task may be to fashion rules for how the provision applies at the local level.
Nicholas Riccardi, The Associated Press
