It's on, baby!

Why the Supreme Court isn't constitutionally barred from resolving Trump's eligibility before the election.

On January 5, 2024, the Supreme Court granted certiorari in Trump v. Anderson and scheduled oral argument for February 8, 2024. In case you’re wondering, the “Anderson” in Trump v. Anderson is 91-year-old Norma Anderson, the former Republican majority leader in the Colorado Senate. Google reveals that when she assumed that position, she decorated her office with a “13-by-19-inch velvet Elvis, complete with a single tear rolling down his cheek.” She is an excellent plaintiff, not that it matters.

Today’s post will address an amicus brief filed by a distinguished group of attorneys, including the former Solicitor General, on behalf of Senator Steve Daines and the National Republican Senatorial Committee. (I’ll refer to the amici collectively as “the NRSC.”) The NRSC makes only one argument: that even if Trump is ineligible, the Colorado Supreme Court still wasn’t permitted to take Trump off the ballot. According to the NRSC, it would be unconstitutional for a court to decide an eligibility challenge until after Trump is elected, or possibly even after Trump takes office.

The brief is very well-written and I admire its creativity, but I’m ultimately unpersuaded. As I see it, there are two problems with the NRSC’s argument:

1. The Constitution doesn’t say this.

2. The practical consequences of this rule would be terrible.

As many a Supreme Court case has inspiringly held: if you’re going to rewrite the Constitution, you might as well do so to achieve a desired outcome. It’s hard to imagine any member of the Court desiring this particular outcome, so I don’t see it happening.

Not everything that is permitted is mandatory

The NRSC’s brief focuses on the following insight: Section 3 of the Fourteenth Amendment says that an insurrectionist can’t hold office, not that he can’t run for office. Thus, even assuming that Trump is ineligible to be President under Section 3, nothing in the Constitution prevents Colorado from putting him on the ballot.

What happens if Trump is elected despite being ineligible? The Twentieth Amendment answers that question:

If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President-elect shall have failed to qualify, then the Vice President-elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President-elect nor a Vice President-elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

So if Trump is elected President but “shall have failed to qualify,” then the VP-elect would take office. No problem!

What’s the point of putting an ineligible candidate on the ballot? The NRSC has a clever answer: even if Trump is ineligible now, doesn’t mean he’ll be ineligible later. Section 3 of the Fourteenth Amendment says: “But Congress may by a vote of two-thirds of each House, remove such disability.” So if the People elect an insurrectionist, perhaps Congress will give the People what they want and render the insurrectionist eligible, in which case the eligibility dispute would become moot. And if not, the Twentieth Amendment would kick in.

So, according to the NRSC, Colorado is obligated to put Trump on the ballot and let this process play out, rather than take matters into its own hands and take Trump off the ballot.

What’s wrong with that?

Well, I’ll accept the premise that Colorado may put an ineligible candidate on the ballot. But that doesn’t mean it must do so. Not everything that is permitted is mandatory.

Moreover, there are lots of good policy reasons that a state would want to leave currently-ineligible candidates off the ballot:

1. Voters will assume that if a candidate is on the ballot, the candidate is eligible to hold office. Allowing voters to vote for a candidate, and then preventing that candidate from taking office, will be perceived as a bait and switch.

2. Even if voters are aware of the risk that their preferred candidate will be held ineligible, it’s good for voters to make informed decisions. And, whether a candidate will take office if elected is pretty much the #1 most important piece of information a voter needs to know when casting his vote. Suppose there’s a voter who ranks the candidates in the following order: 1. Trump; 2. Biden; 3. Trump’s VP. If the eligibility proceeding is deferred until after the election, he’ll have no idea whether voting for Trump or Biden will yield his preferred candidate.

3. If you think taking Trump off the ballot would be controversial now, wait until you see the controversy that would arise if the presidency is yanked from him after he actually wins the election, or worse yet, after he takes the oath.

Of course, it’s theoretically possible that Congress could moot the eligibility dispute by lifting the disability, although I have my doubts on whether two-thirds majorities of the House and Senate would ever do this. But a state could reasonably conclude that ballot-eligibility determinations should be made based on a candidate’s current status, even if that status might theoretically change.

Here’s an analogy. Suppose a state has a felon-disenfranchisement statute. It makes sense that the state wouldn’t allow felons to register to vote. It’s always possible that the governor could pardon a particular felon prior to the election, which would restore the felon’s voting rights. Likewise, it’s always possible that the state could repeal its felon-disenfranchisement statute prior to the election. But these possibilities are speculative, and it is logical for a state to make voter-registration decisions based on the voter’s current legal status and the current state of the law. Likewise, Colorado has sound policy reasons for looking to a candidate’s current legal status in deciding whether the candidate should be on the ballot.

Of course, if the Constitution says that Colorado can’t leave a currently-ineligible candidate off the ballot, then Colorado couldn’t leave a currently-ineligible candidate off the ballot, no matter how sound its policy reasons for doing so might be. But the Constitution doesn’t say that. The Constitution says that certain insurrectionists can’t hold office, and it says that if an unqualified President wins, the VP takes office. That’s not even close to saying that states are obliged to put insurrectionists on the ballot.

Little bear for President

The NRSC insists that U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), establishes that Colorado is constitutionally obligated to keep Trump on the ballot.

In Thornton, the Court invalidated a provision of the Arkansas Constitution that imposed term limits on federal congressional candidates. Under that provision, any candidate who served three House terms or two Senate terms could no longer appear on the ballot. The federal Constitution, by contrast, does not impose term limits on members of Congress. Dividing 5-4, the Supreme Court held that this provision of the Arkansas Constitution violated the Federal Constitution. It reasoned: “The Framers decided that the qualifications for service in the Congress of the United States be fixed in the Constitution and be uniform throughout the Nation.”

The NRSC’s theory is that Trump is qualified for the ballot (even if he’s currently ineligible to hold office), and under Thornton, states can’t prevent candidates who are qualified from the ballot from appearing on the ballot. The NRSC is very confident of its position on this, characterizing the Colorado Supreme Court’s error as “egregious” and referring to its position as “indisputable.”

I don’t agree. Thornton holds that a state must put currently-eligible candidates on the ballot. It doesn’t hold that a state must put currently-ineligible candidates on the ballot.

Indeed, Thornton observes that it’s an open legal question whether Section 3 of the Fourteenth Amendment constitutes a “qualification” for office. It then states that because Section 3 is “part of the Constitution,” it has “little bearing on whether Congress and the States may add qualifications to those that appear in the Constitution.” So I wouldn’t say that Thornton’s application to this case is “indisputable.”

In honor of this “little bearing” language, here’s Dall-E’s rendition of a little bear running for President:

Even setting this language aside, Thornton’s reasoning doesn’t support the NRSC’s position. Thornton points to the “egalitarian ideal—that election to the National Legislature should be open to all people of merit.” This reasoning doesn’t suggest that a state is constitutionally obligated to permit people to vote for candidates who are presently ineligible to serve. The policy justifications at issue in Trump v. Anderson—preventing voter confusion, ensuring that voters are fully informed, etc.—are completely irrelevant to the issue addressed in Thornton.

I also shudder to imagine what would happen if the NRSC’s argument prevails, and then Trump wins the election. Would a dispute over Trump’s eligibility be ripe at that point, even though Congress could still remove the disability at any time before Trump takes office? Even if it would, who would be the plaintiff? The VP-elect would undoubtedly have standing to bring a lawsuit contending that Trump is ineligible to take office, but a Trump’s-VP-versus-Trump lawsuit seems unlikely. Could, or would, faithless electors file lawsuits challenging laws requiring them to cast their ballots for Trump? Could members of Congress file lawsuits? Or would litigation have to wait until Trump actually took office? Could a plaintiff then choose some random Executive Order and argue that it’s invalid because Trump is ineligible to hold office? What would be the remedy? This would be a chaotic and unstable situation.

I suppose the practical benefit of the NRSC’s proposal is that it avoids the need for a contentious decision unless Trump actually wins. But boy, would the Supreme Court be playing a dangerous game.

Finally, to engage in some vote-counting, Justice Thomas dissented in Thornton. It’s an excellent dissent, one of his best ever, in my opinion. Justice Thomas emphasized: “The Constitution is simply silent on this question. And where the Constitution is silent, it raises no bar to action by the States or the people.” Identical reasoning forecloses the NRSC’s argument. Justice Thomas filed a separate opinion adhering to his Thornton dissent in Chiafolo v. Washington, 140 S. Ct. 2316 (2020), which Justice Gorsuch joined in relevant part. So if Justice Thomas and Justice Gorsuch’s votes are off the table, any majority opinion adopting the NRSC’s theory would be composed of a very unusual coalition. I will believe that when I see it.

The NRSC also makes a First Amendment argument. It contends that the Republican Party has a First Amendment right to select the candidate of its choice, and the Colorado Supreme Court’s ruling infringes that right. It relies primarily on California Democratic Party v. Jones, 530 U.S. 567 (2000), which held that political parties have the constitutional right to limit primary elections to voters from those parties.

I have my doubts. Jones held that the California law at issue was unconstitutional because it “force[d] political parties to associate with—to have their nominees, and hence their positions, determined by—those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival.” This doesn’t seem at all like requiring Republicans to choose a candidate who, if elected, would be capable of holding office.

Also, the NRSC’s First Amendment argument applies only to the primary ballot, not to the general ballot. So the NRSC is claiming a First Amendment right to choose a candidate in the primary who wouldn’t be eligible under state law to appear on the general election ballot. Weak.

Against cleverness

My most fundamental objection to the NRSC’s position is that I’m allergic to excessively clever interpretations of the Constitution. I don’t agree with the NRSC’s theory for the same reason I don’t agree with efforts to distinguish “office of the United States” from “office under the United States”: these arguments treat the Constitution like the Da Vinci Code.

I don’t know how the Supreme Court should resolve Trump v. Anderson. But whatever the Court does, I hope its opinion hews as closely as possible to the ordinary meaning of the constitutional text. That is, after all, the Supreme Court’s job. The Court’s job is not to reach statesmanlike compromises based on political judgments about how particular decisions will be received. Its job is to interpret a written document.

It requires significant lawyerly creativity to synthesize a constitutional bar on pre-election eligibility determinations from the combination of the Twentieth Amendment, the two-thirds-majority clause of Section 3 of the Fourteenth Amendment, and a Supreme Court case on congressional term limits. It is America’s great blessing that the overwhelming majority of her citizens are not creative lawyers. Millions of Americans will read the constitutional text and line it up next to the Supreme Court’s opinion. They should be able to understand what they are reading. Whatever the Court does here, I hope it spares us from a creative legal solution.