This article is the second in a five-part series called “Protecting the Elections.” As former President Donald Trump and many of his allies refuse to concede defeat in the 2020 election, this MSNBC Daily series brings together election law and policy experts to tackle the many threats to certifying election results at both the state and national levels to research.
With former President Donald Trump on the brink of potentially running for president again, let’s not forget that he’s on the 2024 ballot in part thanks to the Supreme Court.
I’m not talking about the ruling granting him broad criminal immunity. Though the Roberts Court’s hearing of that appeal helped Trump force a trial in the federal election interference case — possibly forever, if he wins the election and uses his newfound presidential power to crush it.
I’m talking about another Jan. 6-related appeal from the Supreme Court’s last term, one that more directly positioned the Republican to return to power: Trump v. Anderson.
It was there that the justices reversed the Colorado Supreme Court’s decision to keep the former president off the ballot. The case technically involved one state during the primary process, but the U.S. Supreme Court’s ruling effectively ended nationwide efforts to enforce the constitutional provision banning oath-breaking insurrectionists from office.
As a reminder, this is what the post-Civil War provision, Section 3 of the 14th Amendment, says:
No person shall be a Senator or Representative in Congress, or an elector of the President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath , as a member of Congress, or as an officer of the United States, or as a member of a state legislature, or as an executive or judicial officer of any state, in support of the Constitution of the United States, has been engaged in insurrection or rebellion against the same, or aid or comfort given to the enemies thereof. But Congress, by a vote of two-thirds of each House, can remove such a disability.
In a lengthy decision in December, a majority of the Colorado Supreme Court cited this language in agreeing that Trump was “involved in” the Jan. 6 insurrection after he vowed to support the Constitution as president.
“We are aware of the magnitude and weight of the questions now before us,” the state court said on December 19, adding: “We are also aware of our solemn duty to apply the law, without fear or favour, and without being influenced. through public response to the decisions that the law requires us to make.” The public response included threats against the Colorado judges.
Maine’s secretary of state came to the same conclusion later that month (and was also threatened), raising the stakes for the Supreme Court’s inevitable intervention.
The judges also apparently saw a Trump-friendly ruling as inevitable. At the Feb. 8 hearing in Washington, Chief Justice John Roberts worried about the “obvious consequences” of allowing states like Colorado to disqualify insurgent candidates. He mused:
I would expect that in a very short period of time, quite a few states will say, “Whoever the Democratic candidate is, you’re ineligible,” and others will say to the Republican candidate, “You’re ineligible.” ‘ and it will come down to just a handful of states that will decide the presidential election. That’s a pretty disheartening consequence.
That might be an understandable reaction from a random person unfamiliar with the law or the facts. But this is the Chief Justice of the United States. First, casual observers know that a handful of states actually decide elections in our lopsided electoral system. And more importantly: if democratic insurgents are also excluded from the vote, then that is their problem. Even if Roberts’ concerns were valid, there was no violation of the law.
But the consequentialist view would prevail. It was simply a matter of how the court should figure out how to legally achieve the practical goal of keeping Trump on the ballot. The decision came just before the Super Tuesday primaries in March. It was an unsigned “per curiam” statement, although it was actually written by Roberts, according to a New York Times report that was not confirmed by NBC News or MSNBC.
Although the justices unanimously agreed that states could not disqualify presidential candidates, the Times reported on the internal machinations:
Four of the conservatives urged to go further, ruling that the Constitution’s ban would require congressional action to take effect. Such a decision would give Trump more protection: to prevent him from coming to power if he were re-elected, Congress would have to vote to enforce the insurrection ban.
Roberts joined the four Republican appointees in the opinion that led to two separate opinions, both of which highlighted the court’s lack of unanimity. One of them came from the three Democratic appointees. Although it is called a concurrence “in judgment” (that is, in substance), at some points it reads more like an outright dissent, accusing the majority of unnecessarily resolving “new constitutional issues to present to this Court and isolate the petitioner’. [Trump] of future controversies.”
The other separate opinion came from Trump appointee Amy Coney Barrett. She added her own bizarre thoughts to the affair, agreeing with Democratic appointees that the majority went too far, but nonetheless chided the trio for their “stridency” in their policies. How it expressed his disagreement.
To get back to the crux of the matter, let’s consider the opinion of conservative law professor William Baude. He previously clerked for Roberts and co-authored key scientific studies before the ruling, explaining why Trump is disqualified and, intriguingly, insisting in a post-ruling piece that Trump is still disqualified. He wrote in an opinion piece after the decision that the Supreme Court:
quickly overruled [Colorado] without even answering the question of whether Mr. Trump was involved in an insurrection or therefore disqualified from office. Instead, she crafted an argument, which has not been advanced by any party, that states specifically do not have the power to consider this part of the Constitution when making decisions about ballot access. The Trump v. Anderson case lacked any real basis in text and history and is also at odds with the basic structure of the Electoral College, in which states have primary authority to decide how their slate of electors is chosen. The real function of the ruling was to let the court overturn the Colorado Supreme Court and avoid the political firestorm that could follow, without requiring the court to take sides on what happened on January 6.
The available evidence—the hearing, the decision, the investigative reporting—suggests that the court started with the conclusion that Trump should simply stay on the ballot and then tried to reason backwards from there.
And undoubtedly, it is probably an understatement that a “political firestorm” would have ensued if the court had held Trump to the Constitution. Look no further than the threats against judges and election officials who dared to rule against him on these and other issues. Look no further than the Trump-sponsored violence of January 6.
What about the “obvious consequences,” to use the chief justice’s concerned phrase, of an oath-breaking insurgent potentially ruling the country again knowing he would enjoy broad criminal immunity en route to a second term? That consequence was apparently not “deterrent” enough to move this court.
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This article was originally published on MSNBC.com
