The Supreme Court has ruled that Colorado can not disqualify Donald Trump from the presidential ballot. Doug Spencer, professor of law at CU Boulder, says the unanimous nature of the SCOTUS decision makes it notable.
Doug Spencer: I think something that really stands out to me is the unanimity on the central question. This is a court that's relatively divided, and we see a lot of opinions where the justices are going in different directions. And even in this case, there's a small part where the justices have a disagreement.
The central question about whether individual states can disqualify candidates from office in this particular way drew all nine votes of the court, and I think that really speaks to the clarity of law on this issue. I think it also contrasts with the divisiveness in the political sphere about the issue of President Trump and other political factors.
When it comes to applying the constitution, I think the court deliberately wanted to issue a unanimous opinion, and the fact (that) they were able to get that coalition speaks volumes about both the law but also I think, Chief Justice Roberts and his ability to build that coalition.
Maeve Conran: This has broader implications far beyond Colorado. Can you just lay out what some of those implications are?
Spencer: Yeah, there are similar lawsuits to what we saw in Colorado in 26 states. And in more than half of the states, some states had followed Colorado's lead and disqualified Trump from the ballot, for example, Maine and Illinois. Some other states had heard cases and decided not to move forward, like Michigan and Minnesota. But all of that litigation now goes away. All of those decisions, all those outstanding cases become moot, and the only way going forward to enforce Section 3 of the 14th Amendment is via an act of Congress.
Conran: You mentioned what was striking about this was the unanimity around it, but there was a majority of five who actually went a little bit further in the ruling. Can you tease apart exactly what was said?
Spencer: So there's unanimity with the question whether an individual state can enforce the third section of the 14th Amendment, and the Supreme Court said 'no.'
A natural follow up question is, 'well then who can?' And four of the justices said 'we don't need to resolve that issue today. Let's let other institutions try. Maybe the special prosecutor wants to raise this. Maybe a federal court wants to raise this as a punishment if they were ever to criminally convict Donald Trump of insurrection. Maybe, you know, there's lots of different ways in which this could come about and we want to leave those open.'
And what the majority said was in response to this question, who can? They gave an answer, which was 'Congress.' Congress has the authority and because they have the authority, essentially they're the only body that has the authority already under the interpretation of justices, and so there is disagreement about that. And I think the law is not 100 percent clear.
But what's nice about the majority giving us that answer is it provides some clarity. The dissenting or concurring judges who agreed with the outcome but didn't like this extra piece, their position was there would be ambiguity about next steps, and now the next steps are clear. And in an election year clarity has a lot of value.
Conran: The fact that this ruling came down the day before Colorado's primary, we talk about elections in terms of days, it's election day, but really in Colorado, it's an election season, and many, many Republican voters had already returned their ballots. Does that leave the results of the primary in any way in flux?
Spencer: Certainly not an ideal in sense of timing. They issued the opinion before the last day of voting in Colorado, not before voting began, because of our mail-in voting and early-voting period, which is happening more and more across the states.
I do think that the state Supreme Court recognized this issue, which is why they stayed their own opinion while the appeal was happening at the U.S. Supreme Court, which meant that Donald Trump's name was printed on all of the ballots. Had they decided to remove his from the ballot, and all of the early ballots went out without his name, but now somehow we needed to print new ballots in the next 12 hours before the polls open for Super Tuesday, that would be a major problem.
But luckily, our state Supreme Court foresaw that, I think with some advice from the Secretary of State and election officials through briefing, and realized that they didn't want to end up in a situation like that. And so Donald Trump's name has been on the ballot for every voter, even though the certainty with which those votes would be counted has changed.
But I don't know that it calls into question the outcome of the primary or really change as much about the dynamics of the political determinations of voters.
This story was shared via Rocky Mountain Community Radio, a network of public media stations in Colorado, Wyoming, Utah, and New Mexico including Aspen Public Radio.
