The Supreme Court said Friday it will decide whether former President Donald Trump’s name can appear on primary-election ballots, scheduling argument just five weeks from now in a case that will have a major impact on this year’s presidential election.
Colorado’s top court disqualified the Republican frontrunner from the ballot last month, finding that he engaged in an insurrection before and during the Jan. 6, 2021, attack on the U.S. Capitol. Similar arguments have been made to keep Trump off the ballot in other states.
While some of those challenges have failed, including in Michigan and Minnesota, the efforts are pending in Illinois, Oregon, Massachusetts and elsewhere. Maine’s top election official last month barred Trump from that ballot, an order Trump has appealed in state court.
Friday’s announcement puts the justices in a pivotal, potentially uncomfortable position with echoes of the court’s involvement in the 2000 election — when its decision assured victory for President George W. Bush, polarized the nation and damaged the court’s reputation as an independent institution.
The court’s brief order scheduled oral argument for Feb. 8, and came the day before the third anniversary of the Capitol riot.
Legal scholars and state election officials have urged the court to quickly settle the question of Trump’s eligibility as a candidate and to ensure all states follow the same policy ahead of this year’s primary voting. Trump holds a wide lead over other Republican contenders, with the Iowa caucus less than two weeks away and state primaries starting Jan. 23.
The Colorado decision was the first time a court found a presidential candidate could be barred from the ballot because of a provision of the post-Civil War 14th Amendment. The provision prevents insurrectionists from holding office and was designed to keep Confederates from returning to power.
Both Colorado and Maine temporarily put their decisions to bar Trump as a candidate on hold, meaning the former president’s name will stay on the primary ballots until the legal issues are resolved. Colorado and Maine hold primaries on March 5, but ballots are printed — and mailed to military and overseas voters — weeks before then.
Ballots will be mailed to most voters for Colorado’s mail-in primary starting on Feb. 12, four days after the justices are set to hear arguments. Colorado law required Colorado Secretary of State Jena Griswold (D) to certify who could be on the primary ballot on Friday, and she included Trump’s name because the Colorado Supreme Court ruling remains on hold. If Trump is later found ineligible to run, Griswold could prevent votes for him from being counted.
The public already views the Supreme Court through a partisan lens, with Democrats expressing little confidence in the court and Republicans saying the opposite, and the question of whether Trump should be kept off the ballot has the potential to further polarize those views.
“It throws them right into the political thicket,” Stanford law professor Michael W. McConnell said of the court. “There is no way they can decide the case without having about half the country think they are being partisan hacks.”
The justices also are facing other novel questions affecting the political future and criminal liability of Trump, who has been indicted in state and federal court in connection with his efforts to block the 2020 election results, though those criminal charges do not include insurrection. Already, the high court has announced it will review a law used to charge hundreds of people in connection with the Jan. 6 riot, a charge that is among those Trump faces in his federal election obstruction case in D.C. The Supreme Court also will likely be asked to decide whether Trump can be prosecuted for actions he took while president — a question being heard next week by the federal appeals court in D.C.
In the Colorado case, Chief Justice John G. Roberts Jr., an ardent institutionalist, is likely to look for consensus through a narrow ruling that seeks unanimity or avoids a partisan split on a court with a 6-3 conservative majority that includes three justices nominated by Trump.
Constitutional scholars are divided on whether it would be good for democracy to bar Trump from the ballot, or whether such a move, even if legally sound, is politically too dangerous. Many of them say they expect the justices to try to find a way to decide the case without addressing the underlying question of whether Trump engaged in insurrection. The justices have several paths to do so.
In urging the justices to invalidate the Colorado decision, and give voters the opportunity to select the candidate of their choosing, the former president’s lawyers and the Colorado Republican Party have made multiple arguments. States, they say, have no authority to enforce Section 3 of the 14th Amendment without the passage of federal legislation. They also contend that Section 3 applies to those who took oaths to serve in Congress or a state legislature, but not to serve as president. In addition, Trump’s lawyers say he did not engage in an insurrection.
If a majority of justices agree with Trump on any one of those arguments, the court could allow the former president’s name to remain on the ballot.
Attorneys for the six Colorado voters who challenged Trump’s eligibility have said the Constitution’s language barring insurrectionists from office is clear; that it applies to presidents; and does not require an act of Congress to be enforced. They urged the justices in a filing Thursday to abide by the finding from Colorado’s top court that the former president intentionally incited his supporters to violence on Jan. 6 to disrupt the certification of the election — and exacerbated the attack while it was ongoing.
“We’re glad that the Supreme Court will definitively decide whether Donald Trump can be on the ballot. We look forward to presenting our case and ensuring the Constitution is upheld,” said a written statement from Noah Bookbinder, the president of Citizens for Responsibility and Ethics in Washington, which brought the challenge on behalf of Colorado voters.
Trump spokesman Steven Cheung also welcomed the court’s decision to take the case, saying it would end questions around the country about whether Trump can serve as president again.
“We are confident that the fair-minded Supreme Court will unanimously affirm the civil rights of President Trump, and the voting rights of all Americans in a ruling that will squash all of the remaining ballot challenge hoaxes once and for all,” Cheung said in a written statement.
Of the nine sitting justices, only Justice Clarence Thomas was on the bench when the court issued its 2000 decision about the vote count in Florida in Bush v. Gore. But his colleagues are certainly mindful of the lasting impact the ruling had on the court’s image.
Years after she retired, the late Justice Sandra Day O’Connor, for one, expressed misgivings that the court had gotten involved in the case, acknowledging the ruling “gave the court a less than perfect reputation.”
“No doubt they have learned some lessons from that,’ said McConnell, a former federal appeals court judge. “They do not want to be in a position where they look like they’ve decided an American election.”