Sunday, January 28, 2024

A User’s Guide to Trump v. Anderson: Introduction [slightly amended]

Marty Lederman

A week from Thursday, on February 8, the Supreme Court will hear argument in No. 23-179, Trump v. Anderson, et al.  The Court is reviewing a 4-3 decision by the Colorado Supreme Court, which held that Colorado law prohibits the Colorado Secretary of State from including Donald Trump’s name on the ballot in the Republican presidential primary election.  That holding under state law was, in turn, predicated on the state court’s determination that Section 3 of the Fourteenth Amendment to the U.S. Constitution prohibits Trump from “holding” the office for which he is running, namely, the presidency, because he “engaged” in an “insurrection” at the U.S. Capitol on January 6, 2021.  (Only the four Justices in the majority opined on this “substantive” question of Trump’s eligibility to hold office; the three dissenters on the Colorado Supreme Court would have refused for other reasons to require the Secretary of State to exclude Trump’s name from the primary ballot, regardless of whether he’s eligible to hold the office.) 

Trump has filed his opening brief, as has the Colorado Republican State Central Committee (which I’ll refer to as the Colorado Republican Party or CRSCC for short), which is nominally a respondent in the case even though it’s urging the same result as Trump.  (The Court has not yet ruled on the CRSCC’s separate cert. petition, but the CRSCC still has the right to file a reply brief in the Trump case.)  Many amici have also filed briefs, most in support of Trump and a few others in support of neither party.  On Friday, the plaintiffs in the Colorado case filed their brief.  Amici in support of the plaintiffs must file by this coming Wednesday (January 31), and it appears that the Colorado Secretary of State—another respondent—will file a brief defending the decision of its supreme court. 

The Question Presented on which the Court granted certiorari is deceptively simple:  “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”  But behind that discrete question lies a vast array of distinct legal questions, including whether the case is in any realistic sense about the Colorado “2024 presidential primary ballot”—which already includes Trump’s name—and potentially the most momentous question of all, namely, whether the Fourteenth Amendment disqualifies Donald Trump from holding the office of President again by virtue of his actions on January 6, 2021. 

There’s a good deal of public confusion and uncertainty about the issues the case raises, and an extraordinary degree of disagreement, among observers of many political stripes, about what the U.S. Supreme Court is likely to do; what the Court should do; and what the implications would be of the various possible dispositions.  I’ll try to untangle and assess the many legal and strategic questions in the case (and those not in the case) in a series of posts.

In my first (substantive) post, I’ll explain why the Supreme Court’s decision in the case likely wouldn't have any impact at all on Colorado's primary election ballots.  Nevertheless, as I’ll further explain, that might not necessarily mean that the case is moot, and the Court might decide it, anyway, if its decision is likely to have an impact upon Colorado's actions with respect to its general-election ballot if and when the Republican Party nominates Trump for President.  Whether such an impact is likely depends upon questions of Colorado election law that are hazy as of now but that might be clarified by the Colorado Secretary of State if she files a brief in the coming days.  At the end of the post, I also discussion a question concerning the Court's statutory jurisdiction to adjudicate the appeal.

In my second post, I’ll summarize the considerations the Justices will confront in choosing among the three possible dispositions of the case, assuming they don't dismiss it as moot: 

(i) The Court might decide that Trump is ineligible to be President and affirm the decision of the Colorado Supreme Court. 

(ii) The Court might decide that the Fourteenth Amendment does not disqualify Trump from the presidency, and reverse the Colorado court on that ground. 


(iii) The Court might issue a so-called “off-ramp” decision that would reverse the judgment of the Colorado Supreme Court without deciding whether Trump is disqualified from serving as President. 

I’ll offer a few thoughts about why I think the Court will almost certainly not settle upon the first disposition (affirmance) and about why the Court is facing a difficult dilemma in choosing between the other two dispositions, neither of which is ideal.[1] 

In my third post, I explain that all of the parties in the case, and many of the amici, too, mischaracterize what Colorado has done there in ways that unfortunately confuse the issues for the Court:

First, they assume that Colorado is in some sense "enforcing" Section 3 of the Fourteenth Amendment.  It's not.  Indeed, states don't have such authority.

Second, the parties assume that Colorado is acting pursuant to its federal constitutional authority to prescribe the "manner" of choosing presidential electors.  Again, it's not, because states' power to regulate presidential primary elections doesn't derive from the federal Constitution.

In my fourth post, I discuss Trump’s primary “substantive” argument for why he is constitutionally eligible to serve again as President, namely, that even if he did engage in an insurrection, the Fourteenth Amendment would not prohibit him from holding any future office, including the presidency, because he (and he alone among virtually all persons who have held state or federal office since 1868) has never held an office, nor taken an oath, that subjected him to Section 3 in the first instance. 

In my fifth post, I'll address Trumps other merits argument, which is that he can't be disqualified because he didnt engage in insurrection” because he didn’t have the intent to incite the violence at the Capitol on January 6, 2021.  [UPDATE:  I've amended this paragraph to conform with the fifth post.]

In the next post or two after that, I’ll discuss the “off-ramp” arguments Trump and the CSRCC are making—i.e., arguments that the Court should reverse the judgment of the Colorado Supreme Court without resolving whether it would be lawful for Trump to serve as President. 

In my penultimate postI’ll discuss what might be the strongest argument in support of reversing the Colorado Supreme Court—an argument based upon the First Amendment rights of Trump supporters to include him on the primary election ballot.  Trump himself does not raise this argument (presumably because the First Amendment rights in question aren’t his to assert), but that is raised (albeit not very well) by the Colorado Republican Party, which is a respondent party in the Supreme Court. 

In my final post, I’ll identify a bunch of arguments that’ve been the subject of public discussion and (in some cases) litigation, but that Trump has not relied upon or has now effectively abandoned.  Even in the short period between Trump’s petition for certiorari and his merits brief, Trump’s counsel Jonathan Mitchell has made strategic decisions to focus on a handful of arguments and to ditch (or devote virtually no attention to) others that would have been very unlikely to attract a majority of the Court regardless of their potential merits.  The arguments Trump has in effect abandoned include, significantly: 

i. The argument that although rebels, insurrectionists and those who have given aid or comfort to U.S. enemies are ineligible to hold almost all state and federal offices, they may serve as President or Vice President, because those two offices are not offices “under” the United States; 

ii. The argument that the violence at the Capitol on January 6, 2021 did not amount to an insurrection against the United States; and

[UPDATE] iii. The argument that inciting or aiding insurrection is not "engaging in" it. 

I’ll offer some thoughts about why Mitchell has foregone these and other arguments and about why the Court should avoid opining on them. 

I plan to update these posts to take account of arguments offered in the remaining briefs, at oral argument and online, and if and when others identify mistakes, imprecision or omissions in what I’ve written.  Wherever I make material substantive changes, I’ll note them as such. 

* * * *

Complete series of my posts on Trump v. Anderson:

[1] My fellow Balkinization blogger Mark Tushnet has suggested, and amici Akhil and Vik Amar have argued, that the Court should opt for a fourth option—namely, to affirm the legality of Colorado’s refusal to place Trump’s name on the primary election ballot without deciding the substantive question of his eligibility to be President.  The plaintiff-respondents, however, are not urging such a disposition—to the contrary, like Trump himself and many others, they insist that it’s imperative for the Court to opine on the issue of Trump’s eligibility—and I can’t imagine that any of the Justices will be inclined to support such a disposition.  Therefore I won’t discuss this “fourth” option further unless it later appears to be in play.

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