Both liberal and conservative justices weighed in during oral arguments before the U.S. Supreme Court on Feb. 8, 2024, asking questions concerning whether a constitutional provision, Section 3 of the 14th Amendment, gave states too much power to affect a national election.
Colorado’s highest court relied on the provision in a December 2023 ruling that the state could bar former President Donald Trump from the state’s primary ballot because they determined he committed insurrection.
“Why should a single state have the ability to make this determination, not only for their own citizens, but for the rest of the nation?” asked liberal Justice Elena Kagan on Feb. 8.
The Conversation’s senior politics and democracy editor, Naomi Schalit, spoke with Notre Dame election law scholar Derek Muller after the oral arguments.
Muller had submitted an amicus brief to the court “in support of neither party” in the case, using the opportunity to describe some concerns for the court’s consideration about whether and how states go about the business of judging qualifications of candidates before putting their names on the ballot.
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What are your first impressions of the oral arguments?
The Supreme Court was very skeptical that, as an institution, it should be the one responsible for deciding this deeply contested question, and it seemed skeptical that the state of Colorado could do this on its own without some congressional guidance or authorization.
They recognized this as a contested political issue. And I think the concern that one state could effectively alter a national presidential election – without any sort of guidance from Congress or explanation at the federal level about how to go about doing that – was problematic.
The justices did not appear to be divided and partisan in their discussion of the case.
The notion that different states could have different standards for disqualifying presidential candidates, and that they would all come up to the Supreme Court to sort it out, was disturbing to them across the political spectrum. On the whole, they seemed inclined to reverse the Colorado Supreme Court.
Justice Brett Kavanaugh mentioned his concerns about states having such power over a national office. The Colorado solicitor general referred to the “messiness of federalism.” What does this mean?
States are the ones who have the primary responsibility of running presidential elections. And Colorado was leaning very heavily into this authority they have over which candidates to list on the ballot and how that can vary from state to state. The pushback from the Supreme Court in this case was to say, in essence, you’re not dealing with local or state interests, you’re not dealing with these state-specific procedures for how you list candidates on the ballot. You are interpreting a provision of the U.S. Constitution, and then you are applying it in your own state in a way that could affect what happens in other states.
The court did lean much more heavily into the notion that when you’re dealing with a national office, like the office of the presidency, and dealing with a nationwide issue, like Section 3 of the 14th Amendment, it should not be left to each state’s devices to decide how to apply and administer that issue to that office.
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So you’re saying this actually isn’t a problem of federalism, it’s a problem created by a lack of clear understanding of this 14th Amendment provision?
Federalism is a way of thinking about the proper allocation of authority between the federal government and state governments. Federalism is not simply the idea that states get to do what they want.
Sometimes they can. But in other places the federal government has the final say, or the federal government is the one with the authority to make these determinations. And when it came to Section 3 of the 14th Amendment, when you have these messy, contested disputes, should this happen on a state-by-state basis?
The court seemed inclined to think that this is something better left to Congress, rather than states unilaterally interpreting Section 3 on their own.
So does that mean the court would like Congress to make things more clear?
Absolutely. Is it a dodge to say Congress needs to be responsible for this area? Yes. And you can look at Congress and say, have they really legislated in this area? Are they realistically going to legislate in this area? The answer is probably no. Congressional inaction means that these provisions are not going to be enforced, at least as they apply to the events of Jan. 6, 2021, for federal candidates.
How would a court decision affect states other than Colorado?
If the court issues a decision in the way it seems that it’s going to decide this case, it would prevent any states – at least in presidential elections – from keeping candidates off the primary or general election ballots under Section 3 of the 14th Amendment without some kind of federal guidance to get there.
That means there won’t be similar cases in other states, and the ones that are pending will be resolved in Trump’s favor. So I think this will be left to the political process. Trump will appear on the ballot, and the candidacies will proceed as if none of this had happened.
But does that then just kick a decision down the road, and Congress would have to decide after the election whether the president-elect – if Trump wins – is qualified to serve, a problem that the Colorado plaintiff’s lawyer said “could come back with a vengeance”?
Congress has the power to count electoral votes. In the past, it has rejected electoral votes, including in 1873 when a presidential candidate died. The worry here is that perhaps Congress would refuse to count electoral votes for a candidate who was an insurrectionist. And if that happens on Jan. 6, 2025, that puts the nation in a precarious place. Or if Trump takes office, there are likely to be many lawsuits to challenge his official actions by others who are saying he’s an insurrectionist who cannot hold office or act as president.
So a decision in the direction the court appears to be going in has the virtue of allowing the political process to play out. But it does leave open questions later about counting electoral votes or even serving in office, and open questions about mechanisms to challenge those actions and what they look like.
