Election 2024 /

WSJ: Supreme Court 9, Lawfare 0 in the Trump Ballot Case A unanimous Court says Colorado can’t banish the former President.

  |   By Polling+ Staff

(Photo by Julia Nikhinson/Getty Images)

Supreme Court 9, Lawfare 0 in the Trump Ballot Case

A unanimous Court says Colorado can’t banish the former President.

The Wall Street Journal cheers for the Constitution.  The editorial says:

“The Supreme Court’s unanimous decision Monday restoring Donald Trump on Colorado’s presidential ballot is no surprise after the oral argument in Trump v. Anderson last month. But it’s still a landmark, and a victory for the Constitution and democracy over partisan lawfare. 

The Justices overturned a 4-3 decision by the Colorado Supreme Court that invoked Section 3 of the post-Civil War 14th Amendment, which bars candidates from holding federal or state office if they have engaged in an “insurrection or rebellion.” An Illinois state judge and the Maine secretary of state have also ruled Mr. Trump ineligible, though other states have differed.

The High Court cleared up the confusion in robust fashion in an unsigned per curiam opinion that went to the heart of federal versus state power in determining the qualifications for candidates. Letting states enforce Section 3, the Court explains, would create a ‘patchwork’ of electoral policies that would ‘sever the direct link that the Framers found so critical between the National Government and the people of the United States’ as a whole.’ 

‘Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings,’ the Court adds. ‘Some States might allow a Section 3 challenge to succeed based on a preponderance of the evidence, while others might require a heightened showing.’

This peril is particularly grave for the Presidency, which ‘represent[s] all the voters in the Nation,’ the Court stresses. States could remove candidates at different times, which ‘could dramatically change the behavior of voters, parties and States.’

Imagine the uproar that would ensue if a judge or election official in a swing state disqualified Mr. Trump after he won the election. ‘Nothing in the Constitution requires that we endure such chaos—arriving at any time or different times, up to and perhaps beyond the Inauguration,’ the Court writes.

The ruling is shrewd in avoiding the fraught political question of whether Jan. 6 was an insurrection, and whether the President qualifies as an “officer of the United States” under Section 3. Deciding these questions wasn’t necessary to decide the case. The unanimous judgment will reassure the public and shows how out of line the Colorado Supreme Court was.

It’s a shame, therefore, that the unanimity broke down over how Section 3 can be enforced by the federal government. The majority ruled that Section 5 of the 14th Amendment empowers Congress to pass “appropriate legislation” to “enforce” Section 3. Congress must pass a specific law to trigger Section 3, and that means prosectors or executive-branch officials can’t invoke it on their own accord.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson issued an opinion concurring with the Court’s ruling but objecting that “the majority shuts the door on other potential means of federal enforcement,” such as the prosecution of an insurrectionist. (Justice Amy Coney Barrett hinted at a similar view in a much shorter concurrence.)

The liberals say the majority didn’t need to reach the enforcement question to decide the case, and went out of their way to ‘decide novel constitutional questions to insulate this Court and petitioner [Mr. Trump] from future controversy.’ That strikes us as a cheap shot. The Justices aren’t protecting Mr. Trump, who hasn’t been charged with insurrection.

The Justices routinely offer multiple reasons to support a ruling, and the majority was right to put Section 3 in the context of the Constitution’s Electors Clause and Elections Clause. The majority is providing important constitutional clarity to help lower courts in future cases, and shutting the door on future politicized use of Section 3 is a democratic service.

The liberals’ concurrence makes us wonder if they aren’t setting out a new objection to conservative rulings that will now appear in many dissents—to wit, that the rulings are needlessly broad. But they didn’t need to raise such a mildly discordant note in such an important decision as this one.

The good news nonetheless is that the Justices were unanimous on the basic constitutional question. The presidential race should be decided by voters, not by partisans misusing the law to strike candidates from the ballot.”

It appears just about everybody but a few Coloradans saw this coming.