Should Donald Trump be disqualified from state ballots in presidential election? Here’s how the US Supreme Court might rule
The US Supreme Court will hear oral arguments this week in former President
- The US Supreme Court will hear oral arguments this week in former President
Donald Trump’s appeal against the decision to exclude him from the ballot in the Colorado Republican primary for this year’s presidential election. - The Colorado Supreme Court ruled in December that Trump was disqualified from holding the office of president under Section 3 of the 14th Amendment to the Constitution because he engaged in an insurrection on January 6, 2021.
How does the Supreme Court operate?
- The questioning can provide clues as to how the justices might be leaning.
- The justices then meet in private to discuss the case and form a preliminary opinion.
- The draft opinion will be circulated to the other justices and is subject to their suggestions and possible alterations.
What are the constitutional issues?
The justices face a seemingly intractable choice between two fundamental values: defending the rule of law and protecting democracy. For most of its life, the insurrection clause has been regarded by constitutional scholars as of historical interest only and consequently ignored. Trump’s appeal raised three major constitutional questions the Supreme Court will have to decide:
whether Section 3 applies to Trump as a sitting president
what it takes to determine if someone is guilty of insurrection
and whether the states have the power to enforce Section 3 without prior approval from Congress.
- He also claims the president is not an “officer of the United States”, as the clause reads.
- In his petition, Trump offers several unconvincing reasons why this is so and it will probably be a difficult argument for his lawyers to sustain.
- As the Colorado Supreme Court said pointedly in its judgement,
The Constitution refers to the presidency as an “office” 25 times. - In effect, then, they are asking the Supreme Court to validate the charge that Trump engaged in an insurrection.
How will the court likely respond?
- The Supreme Court has a solid six-to-three conservative majority, with three of the conservative justices nominated by Trump.
- The last time the Supreme Court entangled itself in a presidential election – the Bush v. Gore decision in 2001 – it was a judicial dog’s breakfast.
- The ruling was widely seen as a political decision reflecting the partisan preferences of the five conservative justices in the majority.
- The court should be mindful of the public and legal backlash to that decision and its current low level of public approval.
- And the liberal-conservative divide on the court is probably not going to be a reliable predictor of the outcome.
John Hart does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.