A User’s Guide to Trump v. Anderson, Part Eight: The First Amendment/Right to Vote/Federalism-Based "Off-Ramp" Argument that Might Carry the Day [UPDATED]

Marty Lederman

The specific question at issue in Trump v. Anderson is whether it would be lawful for Colorado to remove Donald Trump’s name from its Republican presidential primary ballot.  

Over the past few decades, the Supreme Court has adjudicated many cases involving state efforts to exclude parties or candidates from a ballot, or impose conditions on ballot access.  In virtually every one of those cases, the Court has framed the question as whether the state law restriction or condition violated one or both of two types of private rights that have been incorporated against the States under the Fourteenth Amendment:  (i) the First Amendment right of political parties and their adherents to associate for the advancement of political beliefs, and/or (ii) the right of qualified voters to cast their votes effectively.  See U.S. Term Limits v. Thornton, 514 U.S. at 925 (Thomas, J., dissenting) (“I do not mean to suggest that States have unbridled power to handicap particular classes of candidates, even when those candidates enjoy federally conferred advantages that may threaten to skew the electoral process.  But laws that allegedly have the purpose and effect of handicapping a particular class of candidates traditionally are reviewed under the First and Fourteenth Amendments rather than the Qualifications Clauses.”).[1] And even in the one case where the Court used a different framing, involving whether a ballot exclusion was a de facto effort to impose an additional qualification for service in the House of Representatives (Term Limits v. Thornton), the Court went to great trouble to explain why the state law there was consistent with the Court’s First Amendment/voting rights precedents.

In Trump v. Anderson, however, the parties have relegated the First Amendment and voting rights questions to second-class status, at best.  Indeed, as my series of posts has reflected, the Petitioners have raised between seven and ten arguments that they emphasize more than, or to the exclusion of, the traditional “election law” questions.  Those questions appear only at the tail end of the briefs filed by the intervening-party respondent Colorado Republican State Central Committee—and aren’t very well made there—and they did not appear at all in Trump’s briefs until he included a somewhat veiled allusion to them in a paragraph on page 23 of his reply brief:

Anderson and Griswold suggest that states can bar President Trump from the ballot to protect voters from potentially “wasting” their ballots on someone who may eventually be found ineligible for office.  See Anderson Br. 47, 51; Griswold Br. 26.  But it is for the individual voters to decide for themselves how to weigh this possibility when casting ballots, and a state cannot invoke this paternalism to prevent voters from supporting a candidate who may be eligible by Inauguration Day.

I've had serious doubts about whether it was a wise strategy to bury these arguments because, at least as I see it, all of the other arguments Trump and the CRSCC have offered the Court have quite significant weaknesses, and these “election law” arguments provide the strongest ground for reversal of the decision of the Colorado Supreme Court. 

Today’s oral argument confirmed that I was right to have such doubts.  The thing that was obviously (and understandably) of greatest concern to the Justices at oral argument this morning was that one or a few states should not be able to effectively resolve a contested and fact-intensive question of the constitutional eligibility of a major party's candidate for President.  None of the other arguments offered to the Court provides grounds for a federalism-inflected holding of the sort so many of the Justices (including the Chief Justice and Justices Barrett and Kagan) appeared to be pondering--that is to say, a holding that would preclude states from enforcing Section 3 as to federal officers but leave them free to enforce it as to state officers.  And Justice Kagan specifically invoked the paragraph in Anderson v. Celebrezze that’s especially important here, 460 U.S. at 794-95:

In the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest.  For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation.  Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States.  Thus, in a Presidential election, a State's enforcement of more stringent ballot access requirements … has an impact beyond its own borders.  Similarly, the State has a less important interest in regulating Presidential elections than state-wide or local elections, because the outcome of the former will be largely determined by voters beyond the State's boundaries.  This Court, striking down a state statute unduly restricting the choices made by a major party's Presidential nominating convention [in Cousins v. Wigoda (1975)], observed that such conventions serve "the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State."  The Ohio filing deadline challenged in this case does more than burden the associational rights of independent voters and candidates.  It places a significant state-imposed restriction on a nationwide electoral process.

For reasons I’ll explain below, it's hard to see how Colorado’s asserted justifications for removing Trump’s name from the ballot can justify the harms that Trump voters and the Republican Party will suffer, and could justify an intrusion of "the pervasive national interest in the selection of candidates for national office," particularly because Colorado “has a less important interest in regulating Presidential elections than state-wide or local elections,” especially when it comes to questions of deeply contested, fact-found disputes about candidate eligibility.  

It's entirely possible, I suppose, that the Court might announce a broader, structural "federalism" limitation on the power of states to use their ballot regulations to exclude some or all federal candidates on eligibility grounds (or perhaps only on Section 3 grounds?), and in so doing invoke Anderson v. Celebrezze and other election law cases without necessarily framing the decision specifically in First Amendment/voting rights terms.  Justice Barrett, in particular, hinted at such federalism constraints by invoking analogies to M'Clung v. Silliman (1821) (state courts can't issue writs of mandamus against federal officials) and Tarble's Case (1871) (a state judge lacks jurisdiction to issue a writ of habeas corpus for the discharge of a person held by a federal official).  As I wrote in this post, citing M'Clung, it's common ground that a state lacks legal authority to actually enjoin a disqualified federal official from holding office, or to remove him or her from such office; that a state court couldn't issue an injunction to prohibit someone from taking federal office or to order that person to vacate the office (or order another federal actor to remove the allegedly ineligible person); and that state police can't arrest someone purporting to hold a federal office (e.g., a Senator, a Representative in the House, a civil or military officer in the federal executive branch, a federal judge, or ... a President or Vice-President) on the ground that the state has determined that that person is acting in derogation of Section 3 or some other constititutional limitation.  The Court might conceivably hold that a state also can't accomplish similar results by indirection by the simple expedient of excluding a potential federal officer from a ballot for a federal election.

I'm not certain what such a "structural federalism" ruling would look like, or what its parameters would be.  The easier course, it seems to me, would be for the Court to arrive at the same basic result by simply applying its well-established election law doctrines.  (Derek Muller hinted at a similar disposition last week.)

Such a holding would have other virtues, as well:  For example, it would not preclude the states from excluding candidates from the ballot when they clearly can’t serve (e.g., if they are 27 years old or were born in Guyana or have already been elected twice), because the state's justifications for doing so in such cases are far stronger and the harm to parties and voters is much less.  Nor, as noted above, would it preclude states from enforcing Section 3 of the Fourteenth Amendment when it comes to state officers.  (And therefore the Court could deny cert. in the Couy Griffin case currently pending.)  Most importantly, if the Court were to decide the case on these grounds, it would avoid opining on whether Trump is eligible to serve as President, which is something that presumably will be very appealing to some or all of the Justices.  

That said, there is one potentially significant difficulty with relying upon this argument, which I'll discuss at the end of the post.

Here’s the argument:

The Court has never recognized any robust, or "fundamental," constitutional right of an individual candidate to appear on a ballot.  See, e.g., Bullock v. Carter, 405 U.S. 134, 142-43 (1972); Clements v. Fashing, 457 U.S. 957, 963 (1982) (plurality op.).  The Court has explained, however, that such an exclusion of a candidate will often implicate (i) the fundamental constitutional rights of association of a political party and (ii) the fundamental right to vote of persons who support that candidate.  That doesn’t mean that all such conditions and barriers are unconstitutional, of course; many are commonplace and the Court has upheld quite a few.  The Court has repeatedly explained that in such a case the judiciary must balance the impact on associational and voting rights against the states’ articulated interests.  “No bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms,” and “‘no litmus-paper test ... separat[es] those restrictions that are valid from those that are invidious. ...  The rule is not self-executing and is no substitute for the hard judgments that must be made.”  Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358–59 (1997).  The Court has acknowledged that this is a “flexible standard”:  “A court considering a challenge to a state election law must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff's rights.’”  Burdick v. Takushi, 504 U.S. 428, 434 (1992).  “Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.”  Anderson, 460 U.S. at 789.  “Regulations imposing severe burdens on plaintiffs' rights,” however, “must be narrowly tailored and advance a compelling state interest.”  Timmons, 520 U.S. at 358.

Here, Colorado's ballot exclusion would impose fairly significant burdens on the fundamental rights of Trump supporters in Colorado and the Republican Party.  

In order to understand those harms, it’s important to reiterate what I wrote in an earlier post about the function of Colorado’s presidential primary election.   Contrary to several statements by Jason Murray for the Anderson respondents this morning, the purpose of that election is not to choose presidential electors pursuant to the State’s authority under the Electors Clause of Article II, Section 1 of the federal Constitution (“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”), but instead “to allocate delegates to national nominating conventions of the major political parties.”  Colo. Rev. Stat. § 1-4-1202(2).  Thus, after Colorado voters submit their ballots, Colorado law requires the Secretary of State to “certify” those results to the Republican Party state chairperson and the Republican Party national committee, Colo. Rev. Stat. § 1-4-1207(2), and the Republican Party "shall" then “use the results … to allocate national delegate votes [at the Republican Convention] in accordance with the party’s state and national rules,” id. § 1-4-1207(3).  Regardless of what happens in the Colorado primary, the national Republican Party (i.e., the Republican National Committee) is free to disregard the Secretary's certification, and to allocate and regulate Colorado's delegate votes in a different manner, if party rules so provide.  See Democratic Party v. Wisconsin ex rel. La Follette, 450 U.S. 107, 126 (1981).  

My understanding is that pursuant to the Republican Party delegate selection rules currently in place, ten Colorado delegates would be pledged to vote, on the convention’s first ballot, for the candidate who receives the most votes across the state in the Colorado primary election, and that three delegates from each of Colorado’s congressional districts would be pledged to vote for the candidate that “won” the vote in that district—for a total of 34 Colorado pledged delegates based upon the primary election.  Presumably, if Trump’s name remains on the ballot (as it is now), the vast majority, perhaps all, of those delegates will be pledged to him.  But if he were to be removed from the ballot and (as the Colorado Supreme Court ruled) write-in votes for Trump wouldn’t be counted, then I believe the Colorado Secretary of State would certify those 34 delegates to be allocated to persons pledged to vote for other candidates (e.g., Nikki Haley) on the convention's first ballot.

Such a result would, first and foremost, impose a serious harm on voting rights of qualified Colorado voters who would prefer to vote for Donald Trump.  They simply won’t be able to cast votes for him that would result in a certification of delegates pledged to vote for Trump at the July Convention.

Such a ballot exclusion would also harm, at least to some degree, the national and state Republican Party Committees because they would have to change the Party’s rules for counting delegates from Colorado in order to realize what I assume they wish to accomplish—namely, ensure that those delegates reflect the will of Republican Colorado voters.  The Party Committees could, for example, decide to switch to a caucus system in Colorado in lieu of the primary—but that would come at considerable expense and inconvenience, especially at this late date.  [Please don't quote me on any of this--I might be misunderstanding some aspects of Colorado law and current Republican Party rules regarding convention delegates.]

Whatever adjectives the Court might use to characterize these associational and voting harms to Trump supporters and the state and national parties, they certainly wouldn’t be trivial or marginal, and thus Colorado would have to establish (at a minimum) a fairly substantial justification for removing Trump’s name from the ballot.  That’s particularly so for the primary election ballot because, as the Court has explained in at least three cases, a state must have an especially “compelling” justification for interfering with “[a] political party's choice among the various ways of determining the makeup of a State's delegation to the party's national convention.”  La Follette, 450 U.S. at 124; see also Cousins v. Wigoda, 419 U.S. 477, 491 (1975) (“Illinois' interest in protecting the integrity of its electoral process cannot be deemed compelling in the context of the selection of delegates to the National Party Convention”); California Democratic Party v. Jones, 530 U.S. 567, 576 (2000).

So what are Colorado’s reasons that might justify those restrictions on the Republican Party’s determination of the Colorado delegation to the national convention, and the significant limitations on the voting rights of Trump supporters in Colorado?

Well, the Colorado Supreme Court didn’t offer much of a justification, other than to invoke an analogy to a very different case in which Colorado determined that another candidate for President couldn’t appear on the state’s general election ballot.  Quoting an opinion by then-Judge Gorsuch, the Colorado Supreme Court explained that the exclusion of Trump’s name would “advanc[e]” the state’s “legitimate” interests “‘in protecting the integrity and practical functioning of the political process’ that ‘permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office’” (quoting Hassan v. Colorado, 495 F. App’x 947, 948 (10th Cir. 2012) (Gorsuch, J.,)).  The court also cited Article VII, Section 11 of the Colorado Constitution (se Pet. App. 44a), which states rather vaguely that “[t]he general assembly shall pass laws to secure the purity of elections, and guard against abuses of the elective franchise.”  

As I’ve explained in earlier posts, Hassan was a case in which Colorado officials instructed an unaffiliated presidential candidate that he couldn’t truthfully certify to his qualifications to appear on the general election ballot because he was born in Guyana and therefore was ineligible to serve as President because he wasn’t a “natural born citizen.”

Then-Judge Gorsuch suggested that allowing Hassan’s name to appear on the general election ballot would’ve undermined the ”integrity” of the state political process because it was uncontroverted that Hassan could never serve as President.  (Hassan actually did challenge that conclusion, but on a ground that the court no doubt deemed frivolous--namely, that the Fourteenth Amendment had de facto repealed the Natural Born Citizenship Clause.)  Excluding his name therefore wouldn’t have had much of an impact on legitimate voters’ (and parties’) rights.  Moreover, Colorado had a legitimate interest in not allowing someone to exploit its ballot process for what were, in effect, personal, symbolic purposes—which would effectively be an “abuse[] of the elective franchise,” Colo. Const. art. VII, sec. 11, because “”[b]allots serve primarily to elect candidates, not as forums for political expression.”  Timmons, 520 U.S. at 363.  If states were required to allow such symbolic candidates to appear on their ballots as a matter of course, the parade of horribles isn’t hard to imagine.[2]

The balance in Hassan thus was all in the state’s favor.

The calculus in this case, by contrast, appears to be far different because of several characteristics of the dispute:  

(i) The national Republican Party will nominate Trump regardless of what Colorado does; 

(ii) There’s a very real chance Trump could secure more than 269 electoral votes; 

(iii) The question of Trump’s eligibility to serve as President is deeply contested (at least by one of the two major political parties) and depends upon assessment of a fact-intensive record; 

(iv) Many other actors in the system whose views could be determinative of whether Trump actually takes office, including other states, voters, presidential electors, and the Joint Session of Congress on January 5, 2025 (and possibly federal courts, too), might not agree with Colorado that Trump is disqualified; and 

(v) Therefore Trump might be sworn in as President on January 20, 2025.  

In sum, Trump is not trying to get on the ballot purely for symbolic or expressive reasons and, unlike Hassan, he might actually serve as President again.  Under those circumstances, the “integrity” and “preventing abuse of the election” justifications that states have invoked in order to exclude concededly ineligible candidates from ballots are inapposite—or they are, at best, “remote” and “no more than ‘theoretically imaginable,’” which is insufficient to “justify the immediate and crippling impact on the basic constitutional rights involved in this case.”  Williams v. Rhodes, 393 U.S. 23, 33 (1968).  And that is especially true because states have often permitted patently ineligible, underage candidates to appear on their ballots, and the sky hasn’t fallen.  See Derek Muller’s amicus brief at 17.   

Colorado Secretary of State Griswold, in her brief, flags two additional possible state objectives.  First, she writes (p.26) that an exclusion of Trump from the ballot “ensures voters are not disenfranchised by voting for candidates who are ineligible for office,” which “allows voters to accurately weigh their choices before casting a vote.”  This rationale is problematic for at least three reasons.  First, it’s not a justification that the decision-maker, the Colorado Supreme Court, relied upon.  Second, it assumes that Trump is ineligible just because the Colorado Supreme Court decided that he is—which presumes the answer to the question that other actors would have to eventually determine if Trump were to actually be prevented from taking the oath of office.  Third, if the state were worried that its voters will be ignorant of the mere possibility that other actors will (as Colorado cannot) prevent Trump from taking office or will remove him from office, it can address that problem by educating voters about the possibility rather than by paternalistically preventing them from choosing to vote for Trump with full knowledge of the risks.

Secretary Griswold also writes (id.) that “perhaps most importantly,” such a ballot exclusion “avoids the turmoil of an ineligible candidate winning an election for an office that the candidate is constitutionally barred from holding.”  Again, this isn’t a justification that the Colorado Supreme Court relied upon.  Moreover, it's hard to see how Trump's exclusion from the ballot would sereve to “avoid” any turmoil of the sort Griswold describes, because the Republican Party will nominate Trump anyway, and because whether he’s prevented from entering office will depend on the decisions of others (voters, electors, Congress, etc.)—in other words, Colorado’s actions here won’t do much to affect that prospect, whereas they will cause serious harms to the fundamental constitutional rights of Trump supporters and the Republican Party (and possibly cause turmoil of its own making, as well).

For all these reasons, I think it wouldn't take much effort for the Court to explain that if Colorado were to exclude Trump from its primary ballot, that would violate the First and Fourteenth Amendment rights of Colorado Trump supporters and the state and national political parties.

The Justices, of course, may prefer to issue a decision that is not limited to the Colorado primary election ballot.  As I explained in Part Seven, their more pressing concern might well be the prospect of a possible “tipping point” state such as Wisconsin refusing to place Trump’s name on its general election ballot, which could have the effect of actually deciding which candidate obtains more than 269 electoral votes.

In such a case, there would no longer be any issue of interference with a party’s “choice among the various ways of determining the makeup of a State's delegation to the party's national convention.”  La Follette, 450 U.S. at 124; see also Cousins v. Wigoda; CalDems v. Jones.  Even so, the concerns the Court expressed in Anderson, invoked by Justice Kagan today at oral argument, would be even more acute in that case than in this case involving a primary ballot that will have little national effect:  The state’s restriction would “implicate a uniquely important national interest” and “ha[ve] an impact beyond its own borders.”  The state would have “a less important interest in regulating Presidential elections than state-wide or local elections, because the outcome of the former will be largely determined by voters beyond the State's boundaries.”  And therefore, in addition to harming the constitutional rights of Trump supporters and the Republican Party, such an exclusion in November would undermine "‘the pervasive national interest in the selection of candidates for national office,’” which “‘is greater than any interest of an individual State.’"  Anderson, 460 U.S. at 794-95 (quoting Cousins).

The Supreme Court could say so in its opinion, which ought to be more than enough to deter the possibility (which might already be close to nil) that any states that could make a difference in November might contemplate striking Trump’s name from their general election ballots. 

There is at least one catch with this potential "election law" disposition, however.  As I elaborate above, one fundamental difference between this case and a case such as Hassan, or a case involving a candidate who's 27 years old, or another who has already served two terms as President, is that in the latter cases it is virtually undisputed that the person in question is disqualified to serve.  And it's that relative certainty that both diminishes the constitutional interests of parties and voters and that establishes the state's legitimate interests with respect to the "integrity" of its political process.

This distinction would appear to be essential to the election-law "off-ramp":  The Court is not going to say (nor should it) that Justice Gorsuch's decision in Hassan was wrong.  If that's the case, however, the key question becomes how to assess whether the disqualification question is sufficiently "clear" or "contested" in any given case to tip the balance of interests against the state.  The Colorado Supreme Court, after all, concluded that Trump's disqualification is fairly certain in this case, just as Hassan's was.

If I'm not mistaken, therefore, the Supreme Court would have to articulate some sort of standard by which state officials, and eventually courts, would assess whether a candidate is "certainly" ineligible to serve.  That's no small challenge--besides which, at least some Justices presumably would not be keen on announcing that it's uncertain whether Donald Trump engaged in an insurrection.

I'm not quite sure how this challenge can be addressed.  For now, I'm simply flagging that the Court would probably have to contend with it if a majority is inclined to take this "off-ramp."