Is the Supreme Court seriously going to disqualify Trump? (Redux)

The chances are still low, but improving.

On December 19, 2023, the Colorado Supreme Court held that Donald Trump was constitutionally ineligible to appear on Colorado’s presidential primary ballot because he engaged in an insurrection following the 2020 election. The Colorado Supreme Court stayed its ruling in anticipation of U.S. Supreme Court review. Whoah!

Now seems to be a good time to revisit my post from the long-ago era of September, in which I pegged the chances of the Supreme Court disqualifying Trump at 10%. In view of this recent development, I’ll up the odds to 20%—still low, but not that low. 13-seed-beats-a-4-seed low. Totally within the realm of possibility.

Breaking that down, I’d give a 15% chance that the Supreme Court affirms the Colorado Supreme Court. I’d give an additional 5% chance that the Supreme Court vacates the judgment while leaving the door open to future Section 3 litigation, and then disqualifies Trump in a future case.

And while I’m throwing arbitrary probabilities at the wall, here’s my take on the probabilities of how the Supreme Court will dispose of the Colorado case:

• 5%: The Court denies certiorari or the case otherwise goes away before the Supreme Court decides it.

• 40%: The Court reverses the Colorado Supreme Court, holding that, as a matter of law, Trump isn’t disqualified under Section 3.

• 40%: The Court vacates the Colorado Supreme Court’s decision in a manner that leaves the door open to future Section 3 litigation.

• 15%: The Court affirms the Supreme Court of Colorado.

My reasoning follows, as they say.

This one is going upstairs.

In my September post, I gave a 70% chance that the Supreme Court would decide Trump’s eligibility under Section 3 of the Fourteenth Amendment. I made the following points:

• Random people would be able to file challenges in state courts and state administrative agencies, even if they would lack standing in federal court, and lord knows there are random people in all 50 states who want to disqualify Trump.

• 5 to 10 blue-state supreme courts would disqualify Trump if given the opportunity—and even one such ruling would be a sufficient basis for the Supreme Court to grant certiorari.

• Trump’s criminal case might reach the Supreme Court case around the same time, which would make a Section 3 case seem less extraordinary.

These predictions held up pretty well!

• Random people filed a challenge in Colorado. Trump tried to remove the case to federal court, but the federal court held that the plaintiffs lacked Article III standing and sent the case back to state court, where Article III wasn’t a barrier.

• The Colorado Supreme Court - not even the bluest state supreme court in the country - ruled in favor of the plaintiffs by a 4-3 vote.

• The Special Counsel recently filed a petition for certiorari before judgment asking the Supreme Court to review (and affirm) the D.C. district court’s ruling that Trump isn’t immune from criminal prosecution. If the Supreme Court grants certiorari before judgment, that case and the Section 3 case would be heard together or in close proximity. (EDIT: On December 22, 2023, the Supreme Court denied the Special Counsel’s petition for a writ of certiorari before judgment. Still, I expect the D.C. Circuit to resolve Trump’s appeal by mid-to-late January, so the Section 3 case will likely still be pending when the immunity issue returns to the Court.)

In retrospect, 70% was too low: it should have been pretty obvious that a Section 3 case would go up. The litigation just seemed so nutty that I was a wuss and gave a 70% probability as a hedge.

At any rate, it’s highly likely that the Supreme Court will grant certiorari at this point.

• If the Court denies certiorari, Colorado voters won’t be able to vote for Trump in the Republican primary.

• Depending on how one interprets the Colorado law of preclusion, other state supreme courts might be bound by the Colorado Supreme Court’s holding that Trump is disqualified.

• Even if the Colorado Supreme Court’s decision is not preclusive, other state supreme courts are likely to find it persuasive, creating a chaotic situation.

It’s also likely that the Supreme Court will resolve the case quickly, given that the primaries are rapidly impending. I’ll assign a nominal 5% probability to the Supreme Court not resolving the case, which could happen if various unexpected scenarios arise (e.g., Trump drops out of the race for whatever reason).

Incidentally, if you’re wondering whether the Supreme Court can resolve this case on the merits even though the plaintiffs lack Article III standing, the answer is yes. The Supreme Court resolved this exact issue in ASARCO LLC v. Kadish, 490 U.S. 605 (1989). It held: “When a state court has issued a judgment in a case where plaintiffs in the original action had no standing to sue under the principles governing the federal courts, we may exercise our jurisdiction on certiorari if the judgment of the state court causes direct, specific, and concrete injury to the parties who petition for our review.” That’s this case. And enjoy this memory … this is the last time I’ll be able to point to a Supreme Court case that resolves any difficult issue in this case.

There’s gotta be a way.

The conventional wisdom is that the Supreme Court will reverse the Colorado Supreme Court and find that Trump is eligible for the presidency. This wisdom is conventional for three reasons:

1. Normative take: It would be insanely anti-democratic—the very peak of judicial activism—to disenfranchise millions of voters who support Trump. The voters, not federal judges, should decide whether Trump’s actions on January 6 are disqualifying.

2. Descriptive take: There are six Republican appointees on the Supreme Court, including three Trump appointees, and it is unlikely Republican appointees would disenfranchise Republican voters.

3. Lawyerly take: Trump has many legal arguments against disqualification, each of which is independently sufficient for him to prevail. The proponents of disqualification have to win on all of these arguments in order to win the case. Even if Trump’s arguments are individually weak, it will still be hard for the proponents of disqualification to pull a clean sweep.

These are reasonable points—enough for me to assign a 40% probability that the Supreme Court will reverse the Colorado Supreme Court outright and hold that Trump is eligible for the presidency.

Why not go higher then? Because the arguments for outright reversal, while high in number, are all quite bad. Trump has some good arguments that Colorado’s procedures were flawed, but his arguments that he is eligible for the presidency as a matter of law are weaker. As to the latter set of issues, the Colorado Supreme Court’s decision is very well done, and it will not be easy to reverse.

In my September post, I opined that Trump’s best legal theory is that Congress removed the Section 3 disability in 1872 and 1898, but the Colorado Supreme Court didn’t resolve this argument and it doesn’t appear that Trump made it. Anyone know why?

Here’s how the Colorado Supreme Court resolved the arguments Trump did make, and my take on each holding.

Section 3 is self-executing (paragraphs 88-107). Trump argues that Section 3 of the Fourteenth Amendment doesn’t apply by its own force, and instead can be applied only if implemented by an act of Congress. The Colorado Supreme Court rejects this argument, essentially on two grounds. First, Section 3 reads like a binding rule of law, not like a provision that is inert until Congress takes action. Second, the surrounding provisions in the Reconstruction Amendments are self-executing, so Section 3 must be too. I urge you all to read this portion of the Colorado Supreme Court’s decision. It is well-written and, to my eye, thoroughly persuasive.

Justice Samour dissents on this issue, relying on Griffin’s Case, a decision issued by Chief Justice Chase while riding circuit. See In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869) (No. 5,815). As Professors Baude and Paulsen’s now-legendary article persuasively explains, Griffin’s Case is poorly reasoned. As I see it, the dispute over whether Section 3 is self-executing pits the plain text of the Constitution and 100+ years of precedent interpreting surrounding provisions against a non-binding, garbled precedent written by a single judge in 1869. You could go with Griffin’s Case if you really wanted to, but it’s a tough opinion to write.

Justice Samour also takes the view that the Fourteenth Amendment is self-executing when used as a shield against illicit government action, but it isn’t self-executing when used a sword to disqualify a presidential candidate from the ballot. This seems like a sensible rule, but I don’t see how you can wring that rule out of the text of the Fourteenth Amendment. I predict the Supreme Court will not reverse on this basis.

Section 3 is justiciable (paragraphs 112-126). The Colorado Supreme Court rejects two justiciability objections to the plaintiffs’ suit. First, Trump argues that Article II, the Twelfth Amendment, the Twentieth Amendment, or some combination of the three assign responsibility to other branches of government to assess a presidential candidate’s ballot eligibility. The Colorado Supreme Court walks through each of these provisions and explains why they do not, in fact, assign this responsibility to other branches of government. I think the Colorado Supreme Court is correct on all these issues, outside the margin of lawyer. None of these constitutional provisions suggest, or even imply, that the judiciary is divested of its ability to interpret and apply Section 3.

Next, the Colorado Supreme Court rejects an argument that Trump doesn’t make, which is that Section 3 lacks judicially manageable standards. On this issue, the Colorado Supreme Court is again correct. The U.S. Supreme Court has held that the Equal Protection Clause is justiciable. Why not the Insurrection Clause? However difficult it may be to figure out what “insurrection” means, I guarantee you it is no less difficult than figuring out what “equal protection” means. I cannot imagine a majority of the Supreme Court ruling in Trump’s favor based on this deus ex machina.

Section 3 applies to future presidents (paragraphs 129-43). Section 3 forecloses certain insurrectionists from being a “Senator or Representative in Congress, or elector of President and Vice-President,” or “holding any office, civil or military, under the United States.” Trump argues that the presidency isn’t an “office … under the United States,” because only officers who are under the President are “under the United States.” So, the argument goes, an insurrectionist can’t be Postmaster General, or Deputy Secretary of Agriculture, or Inspector General of the FCC, because those are all “offices … under the United States.” but it’s OK for him to be President.

This sort of argument makes me wince. This is why people hate lawyers! As the Colorado Supreme Court explains, ordinary people reading the Constitution would think “offices under the United States” refers to people who hold United States offices. This includes the presidency, which the Constitution repeatedly characterizes as an “office.” “Under” refers to the fact that the officer is exercising the authority of the United States, not that the President is the human incarnation of the United States and that all other officials in the executive branch are “under” him. The Colorado Supreme Court also points to other constitutional provisions contemplating that the President occupies an office “under” the United States, such as the Impeachment Clause, which authorizes Congress to impose a “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Surely that includes the presidency.

The lower court in Colorado bought Trump’s argument on this issue, emphasizing that Section 3 explicitly refers to Senators, Representatives, and Electors, without explicitly referring to the President. Sure, but as the Colorado Supreme Court points out, there’s a reason Senators, Representatives, and Electors are separately listed. Senators and Representatives are not referred to as “officers” in the Constitution (they are referred to as “members” of the Senate and House), while Electors aren’t even arguably officers.

Anyway, I object to interpreting the Constitution based on this sort of inference. “The Constitution was written to be understood by the voters.” United States v. Sprague, 282 U.S. 716, 731 (1931). Voters are entitled to a Constitution that means what it says. The voters shouldn’t be forced to cleverly infer that “office under the United States” excludes the office of the Presidency because Section 3 addresses the unrelated topic of Senators.

Section 3 applies to presidents who previously engaged in insurrection (paragraphs 144-159). Section 3 applies only to insurrectionists who previously took an “oath … as an officer of the United States … to support the Constitution of the United States.” Trump argues that the President isn’t an “officer of the United States.” Again, this argument pits the Lawyers against the People. “Officer” is a cognate of “office.” Anyone unburdened by law school would think that the person holding the office of the Presidency is an officer.

Also, Section 3 says: “No person shall … hold any office … under the United States,” if “as an officer of the United States,” the person engaged in insurrection. As the Colorado Supreme Court explains, one would naturally read these provisions to be coextensive: officers are people who hold office.

The contrary argument rests on the fact that, in other provisions of the Constitution enacted many decades earlier, “officer,” in context, excludes the President. For example, the Constitution says that the President will appoint and commission all officers, which implies that the President isn’t himself an officer because the President doesn’t appoint or commission himself.

Eh. I accept that in those contexts, the word “officer” isn’t referring to the President. This doesn’t mean that the word “officer,” when not used in conjunction with “President,” excludes the presidency. If you say “the Chief Judge hires all people who work at the courthouse,” this doesn’t mean that the Chief Judge doesn’t work at the courthouse.

More fundamentally, I object to a theory of constitutional interpretation that treats the Constitution as a riddle to be solved by skilled enigmatologists. An officer is a person who holds office, regardless of whether, 100 years earlier, the Constitution’s drafters directed the President to commission officers. I’ll repeat, the Constitution was meant to be understood by the voters.

Trump also makes the related argument that the President doesn’t take an “oath … to support the Constitution of the United States” within the meaning of Section 3 because the presidential oath required him to “preserve, protect, and defend the Constitution” rather than “support” it. This has the feel of a tax-protestor argument. Someone who promises to preserve, protect, and defend the Constitution also promises to support it.

January 6 was an “insurrection” (paragraphs 179-89). The Colorado Supreme Court adopts the following legal standard: an insurrection is “a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish a peaceful transfer of power in this country.” It then finds that there was substantial evidence in the factual record that the January 3 riot satisfied this standard: (1) the mobsters were armed with makeshift weapons (batons, etc.); (2) the mob was sufficiently coordinated; (3) the mob’s purpose was to prevent the transfer of power.

Some members of the Court will be uneasy with this holding. Unpleasant as it was, the January 6 riot wasn’t the Civil War. Still, reversing on the ground that there was no “insurrection” would be a tall task. The Supreme Court is stuck with factual findings from the state courts that would be hard to overturn under the deferential standard of review.

The Court could craft a legal standard for “insurrection” that excludes the January 6 riot. It could require, for instance, that the event last for a particular duration. However, I predict such a decision would be difficult to ground in conventional legal materials. You won’t find a dictionary endorsing this definition, for instance, and plenty of bona fide coup attempts have been pretty quick.

The Court could also point out how different the January 6 riot was from the Civil War and then go with the time-tested solution to difficult legal problems: “wherever the line between ‘riot’ and ‘insurrection’ is, the January 6 event doesn’t cross it.” But is that really true? The January 6 riot was very different from the Civil War, but it was also very different from an ordinary riot. I’m not sure there are five votes to treat the January 6 riot so breezily. And I suspect the Supreme Court doesn’t want to write an opinion that is perceived as minimizing what occurred on January 6.

Trump “engaged in” insurrection (paragraphs 190-256). The Colorado Supreme Court holds that the “engaged in” standard requires “an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose.” It then finds that Trump’s actions met that standard.

The court walks through Trump’s tweets after the election … you all know this story. The court holds: “President Trump’s direct and express efforts, over several months, exhorting his supporters to march to the Capitol to prevent what he falsely characterized as an alleged fraud on the people of this country were indisputably overt and voluntary. Moreover, the evidence amply showed that President Trump undertook all these actions to aid and further a common unlawful purpose that he himself conceived and set in motion: prevent Congress from certifying the 2020 presidential election and stop the peaceful transfer of power.”

With regard to Trump’s actions on January 6, the court says: “Even when the siege on the Capitol was fully underway, he continued to support it by repeatedly demanding that Vice President Pence refuse to perform his constitutional duty and by calling Senators to persuade them to stop the counting of electoral votes. … Moreover, the record amply demonstrates that President Trump fully intended to—and did—aid or further the insurrectionists’ common unlawful purpose of preventing the peaceful transfer of power in this country. He exhorted them to fight to prevent the certification of the 2020 presidential election. He personally took action to try to stop the certification. And for many hours, he and his supporters succeeded in halting that process.”

The court then offers a detailed discussion of how, in its view, Trump’s January 6 speech was unprotected speech under Brandenberg v. Ohio, 395 U.S. 444 (1969). The Colorado Supreme Court quotes lower-court authority distilling a three-part test from Brandenburg: “speech is unprotected under the First Amendment because it incited lawless action is whether (1) the speech explicitly or implicitly encouraged the use of violence or lawless action; (2) the speaker intended that the speech would result in the use of violence or lawless action; and (3) the imminent use of violence or lawless action was the likely result of the speech.” It finds all those factors satisfied by Trump’s speech.

OK, this part of the opinion is where the rubber really hits the road. If the Supreme Court reverses the Colorado Supreme Court outright, I predict it will do so on the ground that Trump, no matter how unpleasant his actions, didn’t “engage” in insurrection merely by raging on Twitter and complaining about the election in a speech.

There’s lots of language in this portion of the decision that the Supreme Court’s conservatives aren’t going to like. For example, the Colorado Supreme Court credits the expert testimony of a Chapman University sociology professor, who testifies, among other things, that “violent far-right extremists understood that [President] Trump’s calls to ‘fight,’ which most politicians would mean only symbolically, were, when spoken by [President] Trump, literal calls to violence by these groups, while [President] Trump’s statements negating that sentiment were insincere and existed to obfuscate and create plausible deniability.” The Supreme Court’s conservatives aren’t going to want to disenfranchise Trump’s supporters because of a woke college professor’s opinion on whether Trump is “insincere.” Also, I suspect the Supreme Court’s conservatives will view the Colorado Supreme Court as improperly holding Trump responsible for the actions of third parties. (E.g.: “[B]etween Election Day 2020 and January 6, Stop the Steal organizers held dozens of rallies around the country, proliferating President Trump’s election disinformation and recruiting attendees, including members of violent extremist groups like the Proud Boys, the Oath Keepers, and the Three Percenters, QAnon conspiracy theorists, and white nationalists, to travel to Washington, D.C. on January 6.”).

These holdings might provide fodder for the Court to hold that the Colorado Supreme Court made legal errors that require a remand—of which more below. But I’m not sure there are five votes to hold, as a matter of law, that Trump didn’t engage in an insurrection.

One way of acquitting Trump would be to hold that Trump’s acts—his tweets, January 6 speech, and everything else—were just talk. Even if his actions motivated his supporters to storm the Capitol, that doesn’t mean that he engaged in insurrection, or so the argument would go. But that’s a tricky opinion to write:

• The easiest way to acquit Trump would be to announce an definition of “engaging” in insurrection that is gerrymandered to require Trump’s acquittal. If the Supreme Court declares that a person doesn’t “engage” in insurrection unless he personally takes up arms against the government or explicitly tells others to do so, then, mirabile dictu, Trump would be innocent of engaging in insurrection—he didn’t personally take up arms against the government or explicitly tell others to do so. However, it would be exceedingly difficult to justify such a definition from first principles.

• Another option would be to leave the precise legal standard fuzzy, but walk through each of Trump’s tweets and speeches and point out that they didn’t propose, even implicitly, storming the Capitol. I doubt there is much appetite at the Court to walk through each of Trump’s tweets, however, and many of them are pretty bad. Also, the proper interpretation of Trump’s tweets arguably has a factual component, which would cause the Court to run up against the clear-error standard of review.

• The Court won’t want to express a view on whether Trump is guilty of the crimes charged in the D.C. indictment—conspiring to obstruct an official proceeding and conspiring to strip Americans of their right to vote. Acquitting Trump of engaging in “insurrection” while leaving open the possibility that Trump is guilty of these offenses will require walking a tightrope.

Alternatively, the Court could try to write an opinion holding that Trump lacked the specific intent to engage in insurrection. He was definitely mad, but he didn’t actually want the dude with the horns to overthrow the government.

But this opinion would be hard to write, too. Intent is a pure finding of fact; can the Court really find that the Colorado court’s finding of intent was clearly erroneous? Ultimately, the Justices don’t know what Trump was thinking that day. And again, such an opinion might be perceived as making factual findings that should be reserved for the D.C. jury.

It’s a head-scratcher. I have little doubt that a majority of the Court would prefer if these lawsuits were thrown out, and perhaps five Justices will find a way to get there, but it will not be easy.

Maybe the Court will kick the can down the road?

If the Supreme Court cannot find a path to outright reversal, it may consider the more modest step of vacating and remanding in a manner that leaves the door open to future Section 3 litigation. I am assigning a 40% probability to this scenario as well. Trump has some decent arguments for such relief—stronger, in my view, than his arguments for outright reversal. However, the downside of this option is that it will prolong the uncertainty and embolden Trump’s opponents, who will perceive the opinion as an engraved invitation to disqualify Trump as long as they obtain a court order that checks additional boxes.

Here are the pertinent holdings from the Colorado Supreme Court’s decision, and how Trump might attack them.

State law authorized the plaintiffs’ cause of action (paragraphs 30-72). The Colorado Supreme Court divides 4-3 on whether the plaintiffs’ suit was authorized by state law. Trump could argue that the dissenters are correct, and because the plaintiffs’ suit violated state law, the Colorado Supreme Court’s ruling should be thrown out.

Ordinarily, state supreme courts are the final arbiter of state law. However, Article II’s Electors Clause provides: “Each State shall appoint, in such Manner as the Legislature thereof may direct,” a particular number of presidential electors. In his Bush v. Gore concurrence, Chief Justice Rehnquist opined that the Electors Clause prohibits—as a matter of federal law—state-court decisions in disputes over presidential elections that wander too far from state law as enacted by the state legislature. Justice Kavanaugh took the same view in his Moore v. Harper concurrence, writing: “Federal court review of a state court’s interpretation of state law in a federal election case should be deferential, but deference is not abdication.” Trump could argue that the plaintiffs lack a cause of action under state law, and that the Colorado Supreme Court’s decision to the contrary therefore violates the Electors Clause.

In my view, this argument has a shot—a small shot, but still a shot.

The Colorado Supreme Court majority concludes that the literal text of Colorado’s election laws authorizes the plaintiffs’ claims. The argument is straightforward:

• Under Section 1-4-1203 of Colorado’s Elections Code, a candidate cannot appear on the primary ballot unless the candidate is “qualified.”

• Under Section 1-4-1204 of Colorado’s Elections Code, the Secretary of State is responsible for putting candidate names on Colorado’s primary ballot.

• Under Section 1-1-113 of Colorado’s Election Code provides, a voter may file a lawsuit if an election official “has committed or is about to commit a breach or neglect of duty or other wrongful act.”

• If Trump is constitutionally ineligible for the presidency, then he isn’t “qualified” for the presidency. Therefore, it would be a “wrongful act”—an act that is wrong—for the Secretary to put him on the ballot. And a voter may file a lawsuit challenging such a “wrongful act.”

To my eye, this is a reasonable interpretation of the text of the applicable statutes, and the dissenters largely do not disagree. Instead, they argue that the majority should not have interpreted these statutes literally, because the legislature didn’t intend them to be used for purposes of a disqualification proceeding:

• Chief Justice Boatright concludes that a court can decide whether a presidential candidate is unqualified on the ground that he is, for instance, too young or was born abroad, because “these presidential qualifications are characteristically objective, discernible facts.” But “the framework that section 1-1-113 offers for identifying qualified candidates is not commensurate with the extraordinary determination to disqualify a candidate because they engaged in insurrection against the Constitution.”

• Justice Samour similarly opines that “section 1-1-113 constitutes a modest grant of power” that is “incompatible with complex constitutional claims such as the one involved here.”

• Justice Berkenkotter offers a similar view: “An insurrection challenge is necessarily going to involve complex legal questions of the type that no district court—no matter how hard working—could resolve in a summary proceeding.”

These are fair points, but they aren’t the basis for an Electors Clause claim. A state supreme court violates the Electors Clause if it departs from the literal text of state law, not if it sticks to the literal text in a manner not contemplated by the state legislature. The dissenters make a few other statutory arguments (e.g., “federal law” doesn’t include the Constitution), but—with one possible exception—none of them jump out at me as the type of extraordinary departure from the text of a state statute that would implicate the Electors Clause.

So what’s the exception?

Well, Section 1-4-1204 provides: “No later than five days after the challenge is filed, a hearing must be held at which time the district court shall hear the challenge and assess the validity of all alleged improprieties. The district court shall issue findings of fact and conclusions of law no later than forty-eight hours after the hearing.” The trial court blew these deadlines. The complaint was filed on September 6; the hearing took place from October 30 to November 3; the parties presented closing argument on November 15; and the trial court issued its order on November 17.

The majority and the dissents appear to agree that the trial court did the best it could under the circumstances, and it would have been impossible to complete the proceedings in five days. But, the dissenters argue, that’s precisely the point—the fact that it was impossible to conduct the proceeding in five days demonstrates that the legislature didn’t authorize such a challenge. Justice Samour’s dissent is particularly strong on this issue: he opines that because the statutory procedures were inadequate for a disqualification proceeding, “the district court forged ahead and improvised as it went along, changing the statutory deadlines on the fly as if they were mere suggestions,” resulting in a “procedural Frankenstein created by stitching together fragments from sections 1-1-113 and 1-4-1204(4) and remnants of traditional civil trial practice.”

This is a potentially promising argument for Trump at the Supreme Court. He could argue that the state-court proceedings departed so dramatically from the timelines in Colorado election law that they should be treated as a nullity under the Electors Clause.

But there are a few flies in the ointment:

1. Even if there was a violation of the five-day time limit, the proper remedy for that violation is a question of state law, and there’s no state law requiring the judgment to be overturned merely because the court blew the deadline. And, there are plenty of cases holding that the violation of a time limit doesn’t necessarily require a judgment to be overturned. Dolan v. United States, 560 U.S. 605 (2010), is a nice example: the Supreme Court held that a sentencing court that misses the 90-day deadline to impose a restitution order still has the authority to enter the order after the deadline.

2. The extra time arguably benefitted Trump, who would have had an even tougher time defending himself if the whole case took five days. The majority points out that Trump “does not contend that he was prejudiced because the district court moved too slowly or failed to resolve the case in a week.” It’s hard to justify overturning the judgment because Trump got additional process that stretched out past five days, unless the five-day requirement is mandatory and jurisdictional, which is doubtful.

3. If the Supreme Court holds that the five-day requirement is mandatory and jurisdictional, a new batch of electors will file a new challenge, and the trial court will wrap it up in five days, leaving the court exactly where it started.

4. Such a holding would leave the door wide open for similar challenges to be filed in other states.

This isn’t a particularly attractive option for the Supreme Court, but no option is particularly attractive, and I think there’s a reasonable possibility the Court will deem this to be the least unattractive option.

Interfering with primary elections violates the First Amendment (paragraphs 73-78). Trump argues that political parties have a First Amendment right to put whoever they want on the primary ballot. According to Trump, if the candidate is ineligible, the Secretary of State can decline to put him on the general election ballot, but not the primary ballot.

This argument is a loser. It’s not much of an interference with the First Amendment to bar voters for casting primary ballots for ineligible candidates. And at best, if Trump prevails on this ground, the Colorado Supreme Court will reinstate its holding during the general election. No way.

Trump’s due process rights were violated (paragraphs 79-87). Justice Samour’s dissent argues that “even with the unauthorized statutory alterations made by the district court, the aggressive deadlines and procedures used nevertheless stripped the proceedings of many basic protections that normally accompany a civil trial, never mind a criminal trial. There was no basic discovery, no ability to subpoena documents and compel witnesses, no workable timeframes to adequately investigate and develop defenses, and no final resolution of many legal issues affecting the court’s power to decide the Electors’ claim before the hearing on the merits.”

The majority points out in response:

• It is both inevitable and desirable that election disputes, including complex election disputes, are resolved quickly: “Looming elections trigger a cascade of deadlines under both state and federal law that cannot accommodate protracted litigation schedules, particularly when the dispute concerns a candidate’s access to the ballot.”

• Trump also can’t show any harm from purportedly receiving insufficient process: “He made no specific offer of proof regarding other discovery he would have conducted or other evidence he would have tendered.”

The majority concludes, perhaps a tad too exuberantly: “If any case suggests that it is not impossible to ‘fully litigate a complex constitutional issue within days or weeks,’ this is it.” I don’t know about that, but I’m skeptical that the Court will reverse on this issue without an offer of proof from Trump as to what additional process he wanted or needed.

Unreliability and insufficiency of the evidence (paragraphs 162-74). The trial court admitted into evidence portions of the January 6 Report prepared by the Democratic-controlled House Select Committee. The Colorado Supreme Court holds that the January 6 Report was admissible under the Colorado Rules of Evidence, and I doubt the Supreme Court will review, much less reverse, that determination of state evidence law.

But taking a step back, Trump has a reasonable argument that the evidence was excessively sparse and unreliable to make a determination of this magnitude. The following evidence figures into the Colorado Supreme Court’s decision:

• Trump’s tweets and speeches that generally extol violence (e.g., Trump’s threats to deploy the military to shoot looters), which the conservative Justices will consider to be part of Trump’s shtick and irrelevant to whether he “engaged in insurrection.”

• The January 6 Report, which is an extremely interesting and in my view reliable document, but which inescapably reflects the perspectives of the House Democrats who drafted it.

• The actions of third parties (Proud Boys, etc.), which are both inflammatory and of limited relevance to whether Trump himself engaged in an insurrection.

• The aforementioned sociology professor’s testimony, which the conservative Justices are really going to dislike.

Also, Trump’s side of the story, such as it is, does not really show up in the opinion.

In the Colorado Supreme Court’s defense, there is plenty of indisputably reliable and relevant evidence in the opinion, such as Trump’s own tweets and statements on January 6. Also, Trump wasn’t prevented from presenting his case; he doesn’t allege that any of his evidence was excluded, for instance. I’m sure Trump could have testified he wanted to, but he chose not to. Still, I suspect that a majority of the Justices may, fairly or not, perceive the Colorado Supreme Court’s decision as telling the Democrats’ side of the story.

Also, disqualifying Trump is a BFD. The Justices will think that, given the high stakes, a state seeking to disqualify a presidential candidate must satisfy an extremely high standard—clear and convincing evidence, or perhaps even the “beyond a reasonable doubt” standard. The Colorado Supreme Court held that the clear-and-convincing-evidence standard was satisfied, but I can see the U.S. Supreme Court disagreeing with that assessment. It might hold narrowly that the Colorado Supreme Court placed too much weight on unreliable evidence and therefore remand for further proceedings, but I view this as unlikely because such a holding would allow the Colorado Supreme Court to reinstate its ruling based on the remaining, reliable evidence. More boldly, the Court could hold that the conjunction of Trump’s tweets and speeches, the January 6 report, and expert testimony were not “clear and convincing evidence” that Trump engaged in insurrection. In other words, it wouldn’t hold that Trump didn’t engage in insurrection, but merely that the available evidence did not offer sufficient certainty of Trump’s guilt under the requisite, sky-high legal standard.

If the Supreme Court reaches that conclusion, what next? It’s not clear what additional evidence is even on the table for the Colorado Supreme Court, or some other state, to consider. De facto, a holding that Colorado’s evidence was insufficient might foreclose all Section 3 litigation—at least for now.

But perhaps not forever, because there is still the matter of Trump’s criminal trial. Abundant evidence will come out at that proceeding, including, maybe, Trump’s testimony. Although Trump is not charged with insurrection, evidence will come out that overlaps with the evidence underlying an insurrection challenge. A Supreme Court decision vacating the Colorado Supreme Court’s decision based on the inadequacy of the current evidentiary record may leave the door open, at least a crack, to find Trump ineligible in a future proceeding. And the Court may find that disqualifying Trump is more palatable in the context of Trump being a convicted felon. It’s not likely, but everything about this case is unlikely.

Could the Court actually affirm?!?!

I’m assigning a 15% probability of affirmance. I realize this seems high under the circumstances.

But … well … read the Colorado Supreme Court’s opinion. It’s extremely well done.

I am aware that courts do not, as a general rule, chastely consider the legal merits of issues while ignoring practical consequences. Perhaps the Supreme Court shouldn’t focus on the quality of the legal reasoning, and should instead focus primarily, or entirely, on the practical consequences of its ruling. I don’t know.

All I’m saying is that good legal arguments do sometimes win. If they do, be surprised, but not too surprised.