Former President Donald Trump’s appeal of a Colorado ruling barring him from the ballot may force the U.S. Supreme Court to weigh in directly on his 2024 election prospects, a case that legal experts said will likely pull its nine justices into a political firestorm.
That state was the first, followed by Maine, to rule that Trump was disqualified from seeking the Republican presidential nomination due to his actions ahead of the Jan. 6, 2021, attack on the U.S. Capitol, an unprecedented legal decision that the nation’s top court could find too pressing to avoid.
“I doubt that any of the justices are pleased that they’re being forced into the fray over Donald Trump’s future. But it seems to me that the court will have no choice but to face these momentous issues,” said attorney Deepak Gupta, who has argued cases before the Supreme Court.
The justices, Gupta said, will have to act with “unusual speed and, hopefully, in a way that does not further divide our deeply divided land. That is a daunting and unenviable task.”
Trump, the frontrunner for the Republican 2024 presidential nomination, and Colorado Republicans are asking the justices to review the politically explosive Dec. 19 decision disqualifying him from the primary ballot under a constitutional provision barring anyone who “engaged in insurrection or rebellion” from holding public office.
The case raises thorny questions for U.S. democracy. Absent intervention by the Supreme Court, whose 6-3 conservative majority includes three justices appointed by Trump, states could apply their own standards of eligibility for office.
Colorado and Maine are both Democratic-leaning states, which nonpartisan U.S. political analysts forecast are unlikely to vote for a Republican presidential candidate on Nov. 5. But there are also efforts underway in other states – including the highly competitive Michigan, which could shape the election’s outcome.
Erwin Chemerinsky, dean of the University of California Berkeley Law School, said the Supreme Court should “take the case and resolve early and for the entire country whether Trump can be on the ballot.”
“The court either would be precluding Trump from being on the ballot or allowing him to remain,” Chemerinsky said. “Either way, the court would be playing a huge role in the election.”
The Colorado court’s ruling marked the first time in history that Section 3 of the U.S. Constitution’s Fourteenth Amendment – the so-called disqualification clause – had been used to deem a presidential candidate ineligible.
Section 3 bars from holding office any “officer of the United States” who took an oath “to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The justices would not have to decide whether or not Trump engaged in an insurrection to resolve the case, legal experts said.
Trump’s lawyers have argued that the constitutional amendment at issue does not apply to U.S. presidents, and that the question of presidential eligibility is reserved to Congress.
PAST CASES PASSED OVER
Trump regularly boasts about his three appointments to the court, which helped win long-sought Republican goals including ending the national right to abortion, placing new limits on affirmative action and expanding gun rights.
But he has also voiced anger at the court for decisions he did not like, including one in 2022 giving Congress long-sought access to his tax returns.
“The Supreme Court has lost its honor, prestige, and standing, & has become nothing more than a political body,” Trump said on social media at the time. “They refused to even look at the Election Hoax of 2020. Shame on them!”
The court rejected cases pursued by Trump and his allies contesting aspects of the 2020 election, which Trump continues to falsely claim was marred by widespread fraud, including a bid by Texas to throw out voting results in four states.
In recent months it turned down a separate opportunity to address the question of Trump’s eligibility and declined to immediately decide Trump’s claim that he cannot be prosecuted for trying to overturn his 2020 election defeat.
The court found itself in a similar position in 2000 when it decided Bush v. Gore, a ruling that handed the election to Republican George W. Bush over Democrat Al Gore. But the stakes could be higher this time.
“In the year 2000, the court had plenty of legitimacy and credibility to spare – it was a far less politicized court in the eyes of the public,” Gupta said.
Compared to 2000, the public at large is more polarized, and democracy seems more fragile, so whatever the court does will have repercussions, said UCLA School of Law elections expert Richard Hasen.
The best way for the court to try to preserve its legitimacy, Hasen said, would be to “issue a unanimous or nearly unanimous ruling. That would help to send a signal that this is not an issue that breaks down along partisan lines.”