• Washington Post

Supreme Court Faces Pressure to Decide if Trump Is on the 2024 Ballot

Jabin Botsford/The Washington Post
Supporters of former president Donald Trump gather at a convention center in Reno, Nev., for a campaign rally on Dec. 17.

Now that a second state has decided to keep Donald Trump off the primary ballot for his role in the Jan. 6, 2021, attack on the U.S. Capitol, there is increased pressure on the Supreme Court to act – and to do so quickly.

Other states could soon follow the lead of Colorado and Maine, said legal scholars who have been tracking the issue, and there is a risk of a patchwork of decisions, with Trump appearing on ballots in some states but not others. The Supreme Court could determine for all states whether Trump is qualified to run.

“The court has to take this case,” said Josh Blackman, a professor at South Texas College of Law Houston. “Super Tuesday is coming up [on March 5]. You can’t have this lingering. . . . You have to print ballots for absentees, overseas ballots, military ballots. We need a prompt resolution of this issue as soon as possible.”

Last week, the Colorado Supreme Court found in a 4-3 decision that Trump was “disqualified from holding the office of President” because he participated in an insurrection. Maine Secretary of State Shenna Bellows (D) reached the same conclusion on Thursday, writing in her decision that the Jan. 6 attack “occurred at the behest of, and with the knowledge and support of, the outgoing President.”

The Colorado Republican Party has asked the U.S. Supreme Court to review the Colorado decision, and Trump is expected to do the same as soon as Tuesday. Trump has said he will also soon appeal the Maine decision to state court. Both decisions have been temporarily put on hold while the appeals are underway, so for now, Trump is slated to appear on ballots in those states.

Questions over Trump’s eligibility to run for president come as he faces criminal charges in federal court in D.C. and state court in Georgia for his actions after the 2020 election. The charges include defrauding the United States and racketeering, but not insurrection.

The Colorado and Maine decisions have roiled the presidential race just as the nominating season is about to begin. Some Democrats have cheered the findings, while others have said they would be better off beating Trump at the polls than having him blocked from running. Trump has a large lead in the Republican primary, but his GOP opponents have rallied to his side, saying voters – not courts or elected officials – should decide who to choose as their standard-bearer.

Florida Gov. Ron DeSantis (R) said on Fox News that the Maine decision violated Trump’s rights to due process. A spokesperson for former South Carolina governor Nikki Haley said “it should be up to voters to decide who gets elected.” Vivek Ramaswamy, a biotechnology entrepreneur, said after the Colorado ruling that he would withdraw from the primary in that state if Trump isn’t allowed to run there. Former New Jersey governor Chris Christie has said voters should be the one to decide Trump’s fate and said on CNN that the Maine decision makes Trump “a martyr.”

Trump and his allies have cast the decisions as anti-democratic and politically motivated, noting that Bellows is a Democrat and all of the Colorado Supreme Court justices were appointed by Democratic governors.

“We are witnessing, in real-time, the attempted theft of an election and the disenfranchisement of the American voter,” said Trump spokesman Steven Cheung. “Democrats in blue states are recklessly and un-Constitutionally suspending the civil rights of the American voters by attempting to summarily remove President Trump’s name from ballots. These partisan election interference efforts are a hostile assault on American democracy.”

Trump advisers say they are monitoring the court cases and decisions, but said they are not particularly concerned about the decisions, especially the one in Maine that hasn’t been in court yet. One adviser, who spoke on the condition of anonymity to discuss the sensitive issue, noted that all court decisions thus far have allowed Trump on the ballot other than the decision by the Colorado Supreme Court.

“We don’t love the Colorado ruling of course but think it will resolve itself,” the adviser said.

Trump’s team expects the Supreme Court to take up the matter and they would welcome a ruling across the board, the advisers said. They believe their odds are highly favorable at the court. One person close to Trump noted that none of the states he needs to get 270 electoral votes are likely to take him off the ballot.

Republicans in Maine on Friday said Bellows’s decision had generated only more support for the former president.

“Shenna Bellows has kicked a hornet’s nest and woken up a sleeping giant in the state of Maine,” said Joel Stetkis, chairman of the Republican Party in Maine. “There’s a lot of people very, very upset that one person wants to take away their choice.”

The challenges to Trump’s candidacy center on a provision of the Constitution’s 14th Amendment, which was ratified three years after the conclusion of the Civil War to guarantee equal rights for those who had formerly been enslaved. Section 3 of the amendment says those who engage in insurrection after swearing to uphold the Constitution cannot hold office.

The measure was meant to prevent Confederates from returning to power, but Trump’s opponents have argued he can’t run again because he urged supporters to march to the Capitol and “fight like hell” when Congress was certifying Joe Biden’s victory.

They have filed challenges around the country, to mixed results. The top courts in Minnesota and Michigan allowed Trump to remain on the ballot in those states. Two dozen challenges in federal courts by a long-shot Republican candidate for president so far have gone nowhere.

Many of the cases have quickly fizzled. On Friday, a federal judge in Virginia dismissed a case seeking to prevent Trump from running in that state after finding those who brought the case did not have legal standing to sue. The judge did not address the merits of their arguments.

The decisions in Maine and Colorado have put pressure on the Supreme Court to get involved soon. The voters who initiated the Colorado challenge have asked the court to agree to take up the case when it meets privately on Jan. 5 and issue a decision by Feb. 11, a day before ballots will begin to be mailed to most Colorado voters. That time frame would be extraordinarily fast for the court but not unprecedented.

“In Bush v. Gore they ruled in three days,” said University of Notre Dame law professor Derek Muller, citing the decision that determined George W. Bush won the 2000 presidential election. “Is it realistic that they could issue a decision by mid-February? It’s completely realistic.”

The Colorado decision put pressure on the Supreme Court to act, and the Maine decision only amplifies it, Muller said.

“It points out that the longer this lingers, the more uncertainty there is in the states as states continue to do their own things – and for voters, as they wonder, you know, am I voting for an ineligible candidate?” he said.

At the same time, the justices may feel like they do not have to act immediately because the decisions have been put on hold. That means Trump will remain on the ballot while the justices consider what to do.

Among the issues courts and elected officials have had to consider is whether Section 3 grants them – rather than Congress – the power to remove Trump from the ballot. They have also had to weigh whether Section 3 applies to the presidency, rather than only to other offices.

If the Supreme Court were to find that Section 3 applies to Trump, it would then have to determine whether the Jan. 6, 2021, attack was an insurrection and whether Trump participated in it. Muller predicted the justices and Trump’s attorneys would be loath to wade into those matters.

“I think they’re looking for the cleanest outs for the court,” Muller said. “And if you have to get into the facts – what was Trump’s state of mind when he was rage tweeting on January 4th, 5th and 6th? What was his state of mind when he was speaking on January 6th? . . . Those are messy. They’re fact intensive. They’re the most politically charged issues.”

Conservatives hold a 6-3 majority on the court, and three of the justices were nominated by Trump. But the issues at play have not often been reviewed by courts, and it’s difficult to predict what individual justices will think of them, legal scholars said.

Blackman, the law professor from Texas South College of Law Houston, said he hoped the liberal justices on the Supreme Court would see that “this is really bad for democracy . . . to have a couple unelected judges in a state saying, ‘No, you can’t vote for the candidate of choice.'”

The questions the case raises are difficult ones, but he said he had trouble seeing Trump appointees siding with those who want to remove the former president from the ballot.

“If any of the Trump appointees go along with this, I think that would probably end the conservative legal movement as we know it,” said Blackman, who has co-written a law review article arguing Trump cannot be removed from the ballot under Section 3.

Michael Waldman, president of the Brennan Center for Justice at New York University, said the findings in Colorado and Maine that Trump engaged in insurrection are persuasive. Determining whether state officials have the authority to remove Trump from the ballot on that basis is a tougher legal question, he said.

“It would be such an extraordinary thing for the Supreme Court of the United States to bar the former president from the ballot that they may want to find a way to avoid having to reach that conclusion,” he said.

But they are likely to deal with the issue in some fashion, he said.

Those who want Trump blocked from running again have targeted states where it is easiest to object to a candidate’s eligibility. Maine has a state law that allows voters to lodge objections with the secretary of state. Bellows held an eight-hour hearing on those challenges before issuing her decision – which was immediately condemned by many Republicans across the state.

“Maine voters should decide who wins the election – not a Secretary of State chosen by the Legislature,” Sen. Susan Collins (R-Maine) wrote on X, the social media platform formerly known as Twitter. Collins, who at times has criticized Trump, defeated Bellows in the 2014 race for Senate.

In an interview Friday, Bellows said she would welcome a review of the decision.

“Under Maine law, my obligation is to ensure that every candidate placed on the primary ballot meets the qualifications for office,” she said. “I do not have the option of declining to assess a particular qualification just because it’s complex or perhaps difficult.”

After the Colorado decision, local and federal law enforcement officials said they were investigating a surge in threats made against the state justices. Bellows said her office has also received “threatening communications” after her decision.

“I was prepared for threats, and I’m grateful to law enforcement and people around me who have worked very hard to ensure my safety and security,” she said.

Kerry McKim, chairwoman of the Hancock County Republican Committee in Maine, said the decision only cements Trump’s already dominant lead in her part of the state.

“I know people who are on the fence about Trump as a Republican, but now, because of this, they want to see Trump prevail,” she said. “They’re angry that they made this decision, and she’s taking away their voice in the primary.”

Billy Bob Faulkingham, the Republican leader in the Maine House of Representatives, said Bellows’s decision challenged the core notion of due process.

“People are innocent until proven guilty,” he said. “Not only has Donald Trump not been indicted for insurrection, not a single person has been convicted of that. So to take someone off the ballot because of insurrection is pretty ridiculous.”

But one of the plaintiffs in the case, Thomas Saviello, a former state senator who voted for Trump twice before leaving the Republican Party after the attack on the Capitol, said Faulkingham’s argument is flawed because Section 3 of the 14th Amendment “says you are involved in an insurrection,” not convicted of it.

“It is a self-determining requirement. It is not one you have to be charged with,” Saviello said.

Saviello acknowledged the lawsuit is in a legal “gray area” and said the Supreme Court “has got to step up” to resolve this issue “before it starts to fester.” Saviello said he left the Republican Party because of Trump’s behavior on Jan. 6 and how he has behaved since. He said he would probably have voted for him again “if he kept his mouth shut and acted like Al Gore” or apologized for not accepting the 2020 results.