SCOTUS Exposes the Reality of Trump’s Ballot Ban: Ahistoric, Undemocratic and Chaotic

The U.S. prides itself as a democracy, but Colorado seems to think differently. On Monday, the Supreme Court announced its decision in Trump v. Anderson, ruling unanimously that President Trump can remain on Colorado’s Republican primary ballot. The decision follows a ruling by the Colorado Supreme Court that, under Section 3 of the 14th Amendment, Trump engaged in an “insurrection” and is thus ineligible for office. Unsurprisingly, the Colorado court that first decided the case is far from a neutral observer; indeed, the seven sitting judges were all nominated by a Democratic governor, and only one judge identifies as a Republican. Colorado’s ballot ban was soon joined by officials in Illinois and Maine, both of which offer arguably less democratic input and stakeholder participation. In fact, Illinois’ ballot ban was decided by a single judge: Tracie Porter. In her appointment to the bench, Porter declared that “[her] motto is impacting lives and changing communities, and that is how I will approach this new position.” In other words, a judge that acts more like an activist than an umpire. And in Maine, Democrat Secretary of State Shenna Bellows decided the case herself by executive fiat. While we can debate these politics endlessly, the legal merits of the case are another matter. 

Following Colorado’s decision, the Colorado Republican Party appealed the case to the Supreme Court. For some brief history, Section 3 of the 14th Amendment (aka the “insurrection clause”) was adopted by Congress in 1868, following the end of the Civil War. Since then, it has rarely been used. The purpose of the amendment was to bar former Confederate soldiers from holding future office. If we applied this to the Presidency, it would read as follows: “No person shall…hold any office, civil or military, under the United States, who…shall have engaged in insurrection or rebellion against the same.” Section 5 of the amendment gives Congress the power to enforce it: 

“The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” 

Throughout the oral arguments, the plaintiffs argued that Trump’s actions on January 6th disqualified him from Colorado’s ballot. But the group defending the ban, Citizens for Responsibility and Ethics in Washington (CREW), faced an uphill battle. Even liberal commentators agree that much is true. After all, why should one state get to decide who will be President? This exact question was asked by Elena Kagan, a liberal justice, showing just how problematic the argument was. As many have argued, it should be up to the voters to decide whether Trump should be President – not an unelected body of judges. 

There is also an argument to be made about petty politics. During oral argument, Chief Justice John Roberts suggested that other states may retaliate and kick a Democrat off the ballot. And in fact, some already have. For example, Lieutenant Governor Dan Patrick (TX) argued that President Biden could be banned from Texas’ ballot. It seems hard to believe that Biden is “...[taking] care that the laws be faithfully executed” under Article II of the Constitution, especially as illegal immigration rises and DHS orders guidance to not enforce immigration law. But I digress. What matters is that such a decision should not be up to the states, as the court unanimously agreed. 

Still, there are more ideas to explore. One argument not addressed was whether the “insurrectionist clause” is applicable to the present day. One could argue that the amendment was intended to apply to Confederate soldiers and nothing more. But this type of originalism is for future scholars to consider. Rightly so, the majority held that Colorado cannot ban Trump – for several reasons. First, the Court held that Congress alone (and not the states) is able to enforce Section 3. This is due to Section 5, which commands Congress to do so. The three liberals (and Justice Barrett) disagreed with this approach, however. They argued that there should be other federal means to disqualify candidates, not just Congress. But these judges offer nothing in return. They provide no examples of what this might mean. As such, the concurring opinions are indeterminate and vague. The majority opinion offers a firm response to Trump’s case. The opinion also includes excerpts from Senator Jacob Howard (MI), who served in the Senate when the 14th amendment was being ratified. Notably, Sen. Howard said that Congress must enforce the insurrectionist clause. These historical bits point to the consensus emerging at the time of the 14th amendment, which was seen to be a tool for Congress’s disposal. 

Finally, the opinion references the idea that ballot bans would sow chaos. In their own words, Colorado’s ban (and others like it) would “nullify” the votes of many people, wreaking havoc. The Supreme Court was right to reject Colorado’s foolish ballot ban. It is merely a form of election interference. The Supreme Court has spoken – now we finally let the voters decide.

Author: Connor Wasik

The views expressed are the author's alone and do not represent the official position of the GWCRs.