Chaos, uncertainty and more litigation would likely follow a Supreme Court ruling that disqualifies former President Donald Trump from appearing on the 2024 ballot, legal analysts say.
Colorado is the only state whose supreme court ruled that Mr. Trump is disqualified for election under the Constitution’s insurrection clause. A decision siding with Colorado could have sweeping ramifications and pose risks for states that keep his name on their primary ballots.
Hans von Spakovsky, a former member of the Federal Election Commission and legal fellow at The Heritage Foundation, suggested that “electoral chaos” would ensue.
“In the event the court were to affirm the Colorado Supreme Court’s decision, the honest answer is that all of what comes next is uncertain,” said Aaron Tang, a former clerk to Justice Sonia Sotomayor and professor at the University of California, Davis. “There are complex political and state law questions that would weigh heavily on what happens next — questions that would themselves be a potential source for further lawsuits.”
The justices are tasked with deciding whether Section 3 of the 14th Amendment, which bars anyone who participated in an insurrection or rebellion from holding office, applies to Mr. Trump over his challenges to the 2020 election and the Jan. 6, 2021, riot at the U.S. Capitol.
A high court ruling saying his actions disqualify the former president would apply to general election ballots heading into November. Colorado law prohibits the secretary of state from printing a candidate’s name on a primary ballot who would otherwise be disqualified from serving office.
Unless other states have similar laws, they could buck the Supreme Court ruling and print Mr. Trump’s name on the primary ballot.
Legal experts say that would be risky because it is unclear how a state’s electoral votes, if they go to Mr. Trump, would be handled.
“A ruling against Trump would only directly affect Colorado, but every other state would have a legal green light if the relevant officials so chose to kick him off their ballot,” said Ilya Shapiro, senior fellow and director of constitutional studies at the Manhattan Institute.
Colorado’s Supreme Court ruled in December that the secretary of state must remove Mr. Trump’s name from the ballot for the March primary. Mr. Trump appealed to the U.S. Supreme Court, which scheduled oral arguments for Thursday.
The Colorado Supreme Court’s decision was the first major ruling on the question to go against Mr. Trump. Maine Secretary of State Shenna Bellows, a Democrat, used the same legal justification to try to remove the former president from ballots. A state court put the move on hold, and Maine’s top court said it would wait for the Supreme Court’s decision in the Colorado case before hearing Ms. Bellows’ appeal.
The majority of the Colorado justices acknowledged they were breaking legal ground but said their reading of the U.S. Constitution indicated Mr. Trump was part of an insurrection in the form of a mob delaying the counting of the Electoral College votes on Jan. 6, 2021.
Though Mr. Trump is facing several indictments, he has not been charged with or convicted of leading an insurrection during the Capitol riot.
Those hoping to remove Mr. Trump from state ballots point to the 14th Amendment’s clause that reads: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The provision was written with the Civil War in mind, but the former president’s opponents say it should apply to his attempts to stop certification of Joseph R. Biden’s electoral victory.
Josh Blackman, a professor at South Texas College of Law, said if Colorado comes out on top in the legal battle, Mr. Trump would no longer be able to argue in courts nationwide that he is a qualified candidate. As a practical matter, all states would likely move to keep Mr. Trump off ballots, given a sweeping win for Colorado, he said.
Mr. Blackman said states that already have held caucuses or primaries where Mr. Trump won would be unlikely to hold a do-over.
“As a practical matter, any delegates pledged to Trump can be released at the convention,” Mr. Blackman said.
John Yoo, a law professor at the University of California, Berkeley, said states would have to keep Mr. Trump off the ballot if the high court rules that he engaged in an insurrection.
“Each state would have to decide under its own rules how to allocate the delegates that Trump has already won (which is only two states so far),” Mr. Yoo said in an email to The Washington Times.
Jonathan Turley, a law professor at George Washington University, said a win for Colorado could set off a political tit-for-tat in states looking to disqualify opposing party candidates.
“If the Supreme Court were to rule for Colorado, it would trigger a spasm of disqualification efforts on both sides. It would invite tit-for-tat disqualifications. We broke from the Articles of Confederation due to its dysfunctional system of states imposing costs and barriers on other states. While this is not a return to that earlier system, it would invite a similar state-by-state obstructive conduct in our elections,” Mr. Turley said.
The Heritage Foundation’s Mr. von Spakovsky wrote in a recent blog post of “mayhem” and “manipulation.”
“This could lead to political mayhem and partisan manipulation of the election process, particularly since a lone election official — such as the secretary of state of Maine, who was an elector for Joe Biden in 2020 — could use that power to disqualify candidates of the opposition party, making the U.S. look like a third-world country,” the former FEC official posted.
A similar challenge has been filed against Mr. Biden in Illinois. Some voters contended that the president’s weak foreign policy and border chaos have enriched smuggling cartels, qualifying as aid or comfort to an enemy. The state board of elections rejected the challenge.
A ruling from the high court in the Colorado dispute could be announced soon after oral arguments, given the time-sensitive nature of the dispute and looming primaries. Colorado’s primary is slated for March 5.
A quick decision is not unprecedented. In 2000, the high court issued a ruling in Bush v. Gore the day after hearing oral arguments.
• Stephen Dinan contributed to this story.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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