How the Supreme Court Could Rule Against Trump in the Colorado Case (and Why It Might Not Matter That Much)

Mark Tushnet

 Everybody assumes, I think correctly, that the Supreme Court will take one of the "off ramps" to avoid affirming the Colorado Supreme Court. (Note that the "reasoning" here is something like this: They won't want to "interfere" with the choice people have before them, and will therefore find the legal reasoning on one of the off-ramps adequate.) But here's a sketch of an argument for affirming the Colorado Supreme Court that wouldn't be all that threatening to the people's choice. (A sketch--there would be a lot of details to fill in.)

From 1789 through at least the adoption of the Fifteenth Amendment (note, the Fifteenth, not the Fourteenth), and perhaps longer, the administration of presidential elections was left in the first instance to the states (on what "in the first instance" means, see below).  So, for example, Article II says that electors shall be chosen "in such Manner as the Legislature may direct," and the electors are to meet "in their respective States." The elaborate initial mechanism for choosing the winner made sense on the widely shared assumption that there would be many "favorite son" candidates put forward by and winning in their own states but nowhere else.

One aspect of this state-based election administration is that each state would decide, according to its own law which candidates satisfied the constitutional qualifications for the presidency (in 1789, age, natural-born citizen subject to the qualification for people born before the United States came into existence, and fourteen years of residency). Section Three of the Fourteenth Amendment added the qualification at issue in the Trump litigation. It too would be determined in each state by the state's own processes, subject perhaps to the possibility, flagged in the literature on Powell v. McCormack, that the state's determination must satisfy a standard of minimal reasonableness.

Ballot design is also determined by each state. So, for example, in 1960 ballots could have (simplifying) two columns, each with the heading "electors pledged to" and underneath, the names John F. Kennedy and Richard M. Nixon. Or the columns could be headed "Electors chosen by" and underneath, "the Democratic Party" and "the Republican Party." That is, whether a candidate's actual name appears on the ballot is determined by state law.

Were the U.S.Supreme Court to affirm the Colorado Supreme Court, it could say that the Colorado Supreme Court's decision was within the bounds of constitutional reasonableness. I think a natural implication would be that Colorado's ballot design couldn't say "Electors pledged to the nominee of the Republican Party" were Trump to be that nominee. But, it seems to me, the ballot could say, "Electors chosen by the Republican Party."

Suppose then that a majority (or plurality) of Colorado's voters vote for the electors chosen by the Republican Party. Those electors meet on the designated day and cast their votes for Donald Trump. The secretary of state, charged (under state law) with the ministerial task for forwarding the votes to Congress, does so. When the time comes to count the votes, a decision is made whether to count Colorado's votes. (That's why Colorado gets to decide on qualifications only in the first instance; Congress ultimately decides whether to count the votes for a candidate whose qualifications are disputed.) 

There's one additional wrinkle. As Josh Marshall has pointed out, if qualifications are determined on a state-by-state basis, we can be pretty confident that Trump won't be found disqualified by the state-based processes in deep red states (and that he won't be found disqualified in some deep blue states). All the action, then, will be in battleground states, and we should be looking for predictions about the likely action of state supreme courts in those states. For what it's worth, my sense is that the courts in Michigan, Pennsylvania, Arizona, and Georgia wouldn't find him (or uphold a finding that he was) disqualified (I don't know enough about Nevada to say one way or the other). My sense is that things in Wisconsin have become so toxic that the state Supreme Court there might keep him off the ballot (and I have no sense of how the authorities in charge of ballot design would respond).

A crude summary: Trump wouldn't be on the ballot in states that he wouldn't win anyway and will be on the ballot in all (or--alas, I have to say this--almost all) of the states that he has a chance of winning. So, with the parenthetical in the preceding sentence in mind, maybe affirming the Colorado Supreme Court wouldn't be crazy after all.