Former President Donald Trump is on a winning streak in court, prevailing in every decision about blocking him from the ballot except for the Colorado Supreme Court.
Three years ago, judges were heavily skeptical about Mr. Trump’s attempts to upend the results of the 2020 election.
This time, courts from coast to coast have tossed out challenges to Mr. Trump’s candidacy before considering the merits of the cases or have ruled in his favor.
The exception was the Colorado high court’s divisive 4-3 ruling banning Mr. Trump from the ballot for the Republican primary in March.
That ruling is on hold while the U.S. Supreme Court hears Mr. Trump’s appeal. Oral arguments are scheduled for Feb. 8.
The case, like so much else surrounding Mr. Trump, is momentous, complicated and a bit surreal, raising constitutional questions that would have been unimaginable a decade ago.
Legal experts said Mr. Trump is getting better outcomes in courtrooms this time because he has a stronger case and is on the defense. To defeat him, a plaintiff must run the table on a series of thorny questions, some of which have never been tested.
Plaintiffs must first show standing, or a legal injury that allows them to bring the case. They must then prove that Mr. Trump “engaged” in an “insurrection,” that he was an “officer of the United States,” that his behavior wasn’t protected by the First Amendment, that the 14th Amendment’s insurrection clause covers the presidency, that courts are the correct forum to rule, and that the correct action is to delete his name from the ballot.
Right now, they also must prove that any of that matters in the primary elections, a Republican Party process.
“In order for Trump to lose, he has to lose on everything,” said Josh Blackman, a professor at the South Texas College of Law.
This month, federal courts in Nevada and New Mexico ruled with Mr. Trump by tossing out challenges raised by a gadfly Republican candidate trying to knock the former president off the ballot in a couple of dozen states. A court in Washington then dismissed a challenge by voters who wanted him off the primary ballot.
The judge in the Washington case said such a court order would be unlawful but left open the possibility of challenging the former president on a general election ballot.
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“The law is on our side and clear,” Alina Habba, one of Mr. Trump’s attorneys, said in a statement to The Washington Times. “This country has no time for election interference and every American deserves the right to pick who they want as their president in 2024.”
The Times reviewed 44 court cases challenging Mr. Trump on the ballot. Eleven were awaiting an initial decision, and another 13 were voluntarily dismissed before judges reached a ruling.
Another 11 were tossed because the judge ruled that those challenging Mr. Trump lacked standing — in legal terms, they couldn’t prove a particularized injury. That left eight cases where a judge had more substantive rulings. Mr. Trump lost one of them.
The scorecard shows the reverse of Mr. Trump’s lawsuits challenging the 2020 election results. A 2001 analysis by the Brookings Institution found that Mr. Trump won 28 of 194 decisions. Most of his victories were in state courts.
Russell Wheeler, who conducted the analysis, said the tally on the insurrection rulings is partly misleading because many federal court cases have been tossed on legal standing issues. Those rulings were not on Mr. Trump’s arguments.
The Colorado Supreme Court ruling on Mr. Trump’s arguments stands out.
The justices decided that state voters did have the right under state law to challenge Mr. Trump’s placement on the ballot, that the case applied to a primary, that he did engage in an insurrection, that state courts could enforce the insurrection clause, and that the clause did, in fact, apply to the former president.
The ruling on the latter point overturned a state trial court. The lower court judge ruled that Mr. Trump was not an officer of the U.S.
That argument is getting plenty of attention before the U.S. Supreme Court.
Mr. Blackman has filed a brief arguing that the way the Constitution describes the presidency, Mr. Trump was not an “officer” of the U.S. The founders charged him with appointing all the officers, he is treated differently in the impeachment clause, and he takes a separate oath.
Mr. Blackman said a lot of legal authority supports that notion.
“If the court accepts our position, this case is over. All these cases are over,” he said.
He said the insurrection clause is not “self-executing” — that it can’t be used on its own to force someone off the ballot. He pointed to a ruling by Chief Justice Salmon Chase in 1869, a year after the 14th Amendment’s ratification, that Congress must write legislation to authorize a private citizen to bring an action.
Chase was a circuit court judge at the time, so his ruling is not considered binding precedent. Still, Mr. Blackman said it provides an easy way for the high court to dispose of the politically fraught case.
“The easiest off-ramp is to say that Congress has to do this,” Mr. Blackman said.
Justin Levitt, a constitutional law scholar at Loyola Law School in Los Angeles, saw it differently.
“Most of the rest of the 14th Amendment, there’s absolutely no question it doesn’t need congressional legislation to make it binding. And most of the rest of the Constitution, you don’t need legislation,” he said.
He challenged Mr. Trump’s argument that the 14th Amendment doesn’t apply to the office of the presidency. Mr. Trump’s team prevailed on that argument in the trial court in Colorado, but the state Supreme Court allowed the justices to rule that Mr. Trump could be banned from the primary ballot.
Mr. Levitt said it’s tough to imagine that the writers of the 14th Amendment intentionally carved out the office of the presidency. In particular, he said, they would have certainly thought Jefferson Davis, the president of the Confederacy, would have been blocked.
“If you think about what they were doing in the 14th Amendment, it’s pretty clear they wanted a bar on holding government off,” he said. “It’s profoundly weird to think about that not including the presidency.”
He also has reason to believe Section 3’s vision of engaging in insurrection covers Mr. Trump’s conduct, not just for the attack on the U.S. Capitol on Jan. 6, 2021, but also for the broader attempt to subvert the election results in the states.
The last time the court tread so deeply into an electoral matter was in 2000, with the Bush v. Gore case that dealt with the hanging chads and ballot chaos in Florida. In a 5-4 ruling, the justices halted Florida’s recount, denying Al Gore the chance to gain votes and delivering the state — and the White House — to George W. Bush.
The justices issued a decision within 24 hours of hearing oral arguments. Court watchers expect another speedy decision with Mr. Trump’s ballot fight, given the timing of the Republican primaries, with Nevada voting the day of the oral arguments, South Carolina voting Feb. 24, and 16 states voting on Super Tuesday, March 5.
The justices also could consider Mr. Trump’s claims of presidential immunity from various criminal prosecutions.
The U.S. Court of Appeals for the District of Columbia Circuit heard arguments this month over whether Mr. Trump, as president, is immune from criminal prosecution over election fraud charges brought by special counsel Jack Smith. The high court has refused to get involved in the dispute before the D.C. Circuit Court rules on the matter. The justices could face another request to weigh in before the end of the Supreme Court term in June.
Derek T. Muller, a law professor at the University of Notre Dame, said the tricky questions give Mr. Trump’s opponents an uphill battle.
He predicted that the Supreme Court would be less interested in the factual arguments about insurrection than in legal arguments, such as whether the insurrection clause applies to the presidency and whether it is self-executing.
“You’ve got multiple ways out, and if there’s one that’s convincing in law, that would be much more appealing than a messier one,” he said.
Mr. Wheeler said the court could invite criticism if it gives Mr. Trump a speedy win on the insurrection case and then slow-walks the immunity case.
“People are going to start pointing to a double standard,” he said.
Mr. Levitt said he thinks the immunity case is the easier of the two, given the hefty precedent that indicates a president does not have the immunity Mr. Trump claims.
Even if the Supreme Court dodges the big issues, Mr. Levitt said, voters should consider these questions when they head to the polls.
“Regardless of the court’s ultimate decision [and] if, as I suspect, they don’t come to an ultimate conclusion, that’s not a signal to let the rest of us off the hook,” he said.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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