The Colorado Supreme Court concluded on Tuesday that former president and current presidential candidate Donald Trump is constitutionally barred from appearing on that state’s 2024 primary election ballot. The state Supreme Court relied on Section 3 of the 14th Amendment, which bars people who engaged in an insurrection, or gave aid or comfort to those who did, from serving in office. Section 3 is part of our nation’s Constitution because we wanted to prevent people who tried to destroy our country from within, in that case during the Civil War, from holding elected office in our representative government.
The U.S. Supreme Court cannot sit back and let states create a patchwork of decisions regarding Trump’s eligibility for the ballot.
Tuesday’s decision cries out for resolution by the U.S. Supreme Court, which, as our nation’s highest court, cannot sit back and let states create a patchwork of decisions regarding Trump’s eligibility for the ballot. Trump, the other presidential candidates, election administration officials and the voting public need a clear answer from the Supreme Court as to whether Section 3 bars Trump from being president again.
The last thing the justices wanted to do is enter the political thicket, but there is little avoiding this question and its enormous implications for the 2024 election. There is no way to make both sides of this debate happy. Those who believe Trump gave aid or comfort to people who engaged in an insurrection argue that he is constitutionally disqualified from office, and that the Supreme Court stands as one of the last guardrails to protect us and uphold the Constitution. Those who believe the opposite, or support Trump, or think this question should be left to the voters, argue that unelected Supreme Court justices should not take the choice of whether to vote for Trump away from the electorate.
If and when the high court agrees to hear Trump’s appeal of the Colorado court’s ruling, it is almost certain to reverse. This is a court still smarting from the drip, drip, drip of ethical scandals. The justices know they are facing historically low approval ratings. A majority will likely believe that the best way to avoid it looking like they’re putting a thumb, let alone their full bodies, on the presidential scales is to allow Trump to appear on state election ballots.
The court has meddled in presidential contests before. Almost exactly 23 years ago, the Supreme Court handed down its famous and infamous decision in Bush v. Gore, which essentially led to George W. Bush’s victory over Al Gore in the 2000 presidential election. The court’s 5-4 decision created a crisis of legitimacy for Chief Justice William Rehnquist’s court. In that case, the court halted Florida’s recounting of ballots, which foreclosed Gore’s only path to victory. The decision ushered in a new era of critics viewing the court, perhaps not unfairly, as acting as a political body.
The question Chief Justice John Roberts’ court now faces in the case out of Colorado could create greater peril for the court than even Bush v. Gore. I say “greater peril” not because the nation is more divided — although it is. Not because Trump, a party in this case, appointed a third of the court. And not even because Trump’s political fortunes may live or die based on the court’s decision. It’s a worse position for SCOTUS to be in because, unlike in Bush v. Gore, which came after the people had voted, this case arrives before a single vote has been cast in the 2024 presidential election. Justices have to be mindful that if they uphold Colorado’s ruling, then they will look like they’re taking away the electorate’s sacred right to choose its next president.
But it would be wrong of the court to conclude that invoking Section 3 of the 14th Amendment is wrong because it’s anti-democratic. Section 3 was designed to be anti-democratic, or at least, democracy-limiting. It was designed to save us from ourselves. The idea behind the section is that if the other safeguards have failed, and someone who engaged in an insurrection, or helped those who did, wants to serve in federal office, then we should declare that person ineligible for office; that is, take that choice away from voters.
Regardless of the original intent of Section 3, the court is unlikely to uphold Colorado’s decision. Even though multiple conservatives on the court openly espouse originalism as their guiding legal principle. Regardless of the original intent of Section 3, a majority of the court is unlikely to uphold Colorado’s decision. Even though multiple conservatives on the court openly espouse originalism as their guiding legal principle. The real question is on which grounds will the Supreme Court reverse? The court could decide not to reach the merits of the case, and instead find that the case was not yet ripe for review. For instance, a judge in Michigan concluded that a similar case was not ready, or ripe, for review until it is time to place Trump’s name on a general election ballot. This would allow the court to avoid the big constitutional questions, not to mention the political questions. The court, if it reaches the merits, could say there isn’t enough evidence to conclude that there was an insurrection on Jan. 6, 2021, or that, if there was one, that there’s not enough evidence that Trump gave aid or comfort to those who engaged in it. But perhaps the most likely route for the court, if it does reach the merits, is for it to conclude that the plain language of the Constitution barring those who engaged in or supported an insurrection does not apply to candidates for the office of president of the United States. That’s what a Colorado lower court judge found. However, it makes little sense that the drafters of the 14th Amendment wanted to bar a county commissioner who joined an insurrection from serving in office but not the leader of the executive branch. In sum, it is not clear which legal route the Supreme Court will take to overturn the Colorado Supreme Court’s decision. But all signs point to the court looking for a short off-ramp to allow it to avoid a scarier sequel to the fallout after Bush v. Gore.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
