He’ll be on the ballot

If Donald Trump is the cosmic black hole into which all of American politics is eventually pulled, then this week it was the Supreme Court’s turn for an unwanted trip through the vortex. The particular question before the Court was relatively straightforward: Could the State of Colorado prevent Donald Trump from appearing on its ballots by deciding that he had engaged in insurrection in violation of his oath, thus disqualifying him from federal office under Section 3 of the 14th Amendment, a rule adopted in the wake of the Civil War.

But of course, nothing is straightforward with Donald Trump—one aspect of a cosmic force is that it warps the normal rules of the space-time continuum. All nine justices agreed that Colorado could not bounce Trump from its ballot because it is the right of the federal government, not the states, to set standards for who can be a candidate for federal office. States can determine the qualifications for their own offices, but not for federal office, and especially not for the presidency.

The court rightly worries about a scenario in which Colorado, Maine, and Illinois find that Trump had engaged in conspiracy, and thus bar him from the ballot, while Mississippi, Alabama, and Texas allow him to stand. The “per curiam” opinion (Latin for “for the court,” it means no one individual justice claims authorship) points out, “The patchwork that would likely result from state enforcement would sever the direct link that the Framers found so critical between the National Government and the people of the United States as a whole.” That is especially troublesome in a presidential election, where “the impact of the votes cast in each State is affected by the votes cast—or, in this case, the votes not allowed to be cast—for the various candidates in other States.” The court understandably wanted to avoid such a mess, where Texans or Alabamans might be casting their votes for a candidate who could not win an Electoral College majority because he was disqualified in other states.

Thus far all nine justices agreed. But they parted ways on other parts of the ruling, namely the foundational discussion of the process by which the federal government could disqualify a federal candidate. In its reasoning, the court slammed the door shut on any follow-up lawsuits challenging Trump’s eligibility in federal court by stating that an act of Congress is necessary to implement the Section 3 rule.

Justices Sonia Sotomayor, Elana Kagan, and Ketanji Brown Jackson criticized the court in a separate opinion for reaching to decide more than needs to be decided right now. I understand the criticism, but find it unfair in this instance. The court did not “decide” anything on federal disqualification—it provided a historical overview of the provision that explained how the drafters intended it to work. The court concluded, in essence, that states cannot disqualify federal candidates because that is a power reserved to Congress. Perhaps that was more detail than strictly necessary—the court could have said the power was reserved to the federal government generically, and left to a different day whether it was reserved to Congress or the federal courts or some other federal official.

If it was a reach, I think it was a prudent one. The court put the disqualification question to bed: We won’t wake up tomorrow to a new federal lawsuit in the First or Fourth or Ninth Circuit trying to bounce Trump on the same theory in front of different judges. Further litigation would inevitably reach the court again, requiring the justices to decide if the federal courts or only Congress could enforce Section 3. The opinion the court wrote resolved the entire issue in a way that spares us a sequel that only further politicizes the court that much closer to Election Day. Now this question rests where it belongs—in the hands of the American people when they show up to the ballot box.