How not to decide Trump’s Colorado ballot case

How the U.S. Supreme Court writes its opinion in Trump v. Anderson could have enormous long-term implications. The oral arguments on Feb. 8 left no doubt that the Supreme Court will reverse the Colorado Supreme Court and hold that Donald Trump is not disqualified from being on the ballot for the Republican primary in that state.

Although the result was obvious from the two and a half hours of questions by the justices, it was unclear what rationale the court will adopt. Many of the possibilities would do serious damage to future elections and to constitutional law.

States can’t enforce the 14th Amendment

Chief Justice John Roberts suggested during oral arguments that the 14th Amendment was meant as a limit on state power, not authority for states to enforce the 14th Amendment. Commentators, such as New York Times columnist David Brooks, have praised this argument.

But it is just wrong. States enforce the 14th Amendment all the time. The Bill of Rights is applied to the states through the due process clause of the 14th Amendment. Literally every day, state courts hearing criminal cases enforce provisions such as the Fourth Amendment’s limits on police search and seizures and the Sixth Amendment’s requirements during a criminal trial. If a state adopted an unconstitutional law restricting voting, surely state courts could enjoin it.

There is no reason why state courts cannot also enforce Section 3 of the 14th Amendment. That provision, like all, is meant to limit what the government can do. And a state court keeping Donald Trump off the ballot is enforcing the limits imposed by the Constitution. If the court writes its opinion that states are limited in their ability to enforce the 14th Amendment, the implications would be huge.

The voters should not be disenfranchised

Many justices seemed to endorse this view at oral argument. There is a surface appeal to the idea that the voters should be able to have on the ballot and then elect whomever they want.

The problem with this argument, though, is that courts never could enforce any limits on who can be a candidate. Many states have restrictions on who can run for office. California, for example, requires that the attorney general and district attorneys be lawyers. Cities have requirements that officeholders live in their jurisdictions. Laws across the country require that a person live in the district from which he or she is elected. The Constitution imposes other limits on who can be president such as requiring that the person be at least 35 years old, a natural-born citizen, a resident for 14 years and not have served two terms as president already.

All of these restrictions disenfranchise voters in that they limit who they can vote for. If the court embraces the view that the voters get to choose notwithstanding Section 3 of the 14th Amendment, not only would it nullify that provision, but it would seem to put all limits on who can hold office in jeopardy.

One state should not decide for the country

At the oral argument, several of the justices, including liberal ones, raised this concern. Again, there is appeal to this concern and a fear that it will open the door to states in the future exercising this power in nefarious ways.

But this argument is flawed in that it would not be one state deeming that Donald Trump violated Section 3, but rather the United States Supreme Court. Every case must begin in one state, whether in federal court or state court there. The trial court will hold a hearing, as was done in Colorado with a five-day hearing over whether Trump was disqualified.

But then there are appeals, ultimately to the U.S. Supreme Court. And it is the Supreme Court which will resolve whether Section 3 applies, including whether the individual participated in an insurrection or rebellion. Some have expressed concern that the fact finding of a state court could bind the Supreme Court. The high court, though, can review the adequacy of the fact finding, as it constantly does in other cases. Besides, in this instance, the facts are not in doubt; there is no doubt as to what occurred on Jan. 6 or what Donald Trump did.

Every time a federal district court declares a law unconstitutional and issues a nationwide injunction, a court in one state is making a decision for the country. If enforcement of Section 3 cannot begin in one state, that provision is effectively nullified. And if this rationale is followed, it would call into question the ability of state and federal trial courts ever to engage in fact finding and make rulings that affect the entire country.

Section 3 only means that a person cannot serve as president; it does not keep a person from running

Justice Neil Gorsuch suggested this in his question. But this would mean that no restrictions on who can serve in an office ever could be enforced to keep the person off the ballot. This would be highly undesirable because it would mean that people would be wasting their votes by selecting individuals ineligible to serve.

This argument would mean that the people could vote for someone ineligible to serve, only for the court to act after the election. This would be far worse, as it would mean that the court could decide if Trump was eligible for president only after he was elected. If there is concern for disenfranchising the voters and causing political chaos, this would surely do it.

My point is that if the Supreme Court is going to reverse the Colorado Supreme Court and allow Trump to run for president, it should be very careful how it does so. Many of the rationales suggested at oral argument would have devasting implications for other elections in the future.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.