The Supreme Court unanimously decided states cannot unilaterally expel presidential candidates from their ballots. However, the unanimity ended there.
In September 2023, Colorado voters sued to have former President Trump removed from the ballot in the 2024 presidential election. A five-day trial in state court resulted in a finding that Mr. Trump engaged in “insurrection” as defined in Section 3 of the 14th Amendment; the district court did not authorize removal, though, as the Presidency is not an “office.” On appeal, however, the Colorado Supreme Court determined the Presidency is an “office” under the 14th Amendment and, thus, Mr. Trump was to be removed from the ballot based on the lower court’s insurrection finding.
The Supreme Court of the United States then granted certiorari to Mr. Trump’s appeal to answer: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”
The majority focused its analysis on the principles of federalism. The Court held states are constitutionally barred from impacting federal elections in this manner, frequently citing in both oral argument and the opinion a case law school scholars are familiar with, Term Limits, Inc. v. Thornton. Specifically, the Court felt “granting the States that authority would invert the Fourteenth Amendment’s rebalancing of federal and state power.”
The majority then expanded its decision to describe how Congress could, under Section 5, enforce Section 3, which caused Justices Barrett, Sotomayor, Kagan, and Jackson to concur only in the judgment. Per the majority, Congress has to legislate to either remedy or prevent the acts of insurrection and rebellion prohibited under Section 3, which it did by enacting the criminal statute proscribing insurrection and rebellion.
Justice Barrett, in her separate concurrence, tried to focus on the Court’s unity and downplay the remaining division on the issue. However, she would have preferred the Court show restraint by only answering the question before it (authority of the states) rather than exploring questions about federal legislation and remedies.
The concurring opinion authored by Justice Sotomayor and joined by Justices Kagan and Jackson expanded on Justice Barrett’s idea of judicial restraint. The concurring justices agreed it was inappropriate for Colorado to remove Mr. Trump from the ballot, but would go no further as they believed the majority incorrectly decided how Section 3 was to be enforced, rather than answering the question before them of who can enforce Section 3.
In sum, the decision creates more questions than answers. Is the President an “officer” under the 14th Amendment? Given that the Court could have resolved the dispute on this point, the Court’s silence indicates that it likely is.
More importantly, what due process is required prior to removal? In this case, there was a trial to answer whether an insurrection occurred. Is this sufficient? Can Congress simply pass a law declaring an individual an “insurrectionist” in violation of Section 3, like statutes recognizing treaties? Or does a prosecution have to be brought under the criminal insurrection statute Congress enacted through its powers under Section 5? It would seem a prosecution or impeachment proceedings under the insurrection criminal statute would have to result in a conviction before someone could be barred from the Presidency. Alas, that is a question to be litigated before the Supreme Court another day.
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