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After oral arguments at the Supreme Court in Trump v. Anderson, a grand bargain that appears to make practical sense as a compromise is beginning to come into view: The Supreme Court unanimously, or nearly so, holds that Colorado does not have the power to remove Donald Trump from the ballot, but in a separate case it rejects his immunity argument and makes Trump go on trial this spring or summer on federal election subversion charges. Depending upon how the court writes its opinion, however, it could leave the door open for chaos in January, if Donald Trump appears to win the 2024 election and a Democratic Congress rejects Electoral College votes for him on grounds he’s disqualified. Justice Ketanji Brown Jackson, however, may have seen this danger and found a way around it. If the court’s going to side with Trump in the disqualification case, it should embrace Justice Jackson’s rationale, even if it is not the most legally sound one.

Since the Colorado Supreme Court removed Trump from the ballot on grounds he engaged in insurrection, rendering him disqualified under Section 3 of the 14th Amendment, most close observers of the U.S. Supreme Court expected a reversal: The idea that a single state could remove a leading presidential candidate from the ballot seemed both politically fraught and a bad political precedent.

It was clear from Tuesday’s oral arguments that many of the justices shared this view. Chief Justice John Roberts in particular was concerned about a race to the bottom in which Republican states try to take Joe Biden off the ballot and it becomes a kind of free-for-all. More liberal Justice Elena Kagan expressed a similar view about the unique federal interest in not leaving this to the states. Justice Amy Coney Barrett flagged the “first mover” problem, in which whatever state disqualifies first would make factual findings that would be binding on the nation. In fact, listening closely to the questioning, I counted only one justice, Sonia Sotomayor, who might be persuaded to affirm Colorado’s disqualification decision. Expect a unanimous or nearly unanimous opinion for Trump.

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The concern about states going their own way and creating disuniformity in a presidential election is a reasonable one, and a decision that avoids letting states remove presidential candidates for political reasons makes practical sense. And there is something of a fortuity to the fact that by Monday, Donald Trump has to come back to the Supreme Court for an emergency motion on his claim of immunity to avoid going to trial on election subversion. Trump’s immunity arguments are exceptionally weak, as the unanimous decision from a bipartisan panel of D.C. Circuit judges confirmed this week. What a nice Kumbaya moment it could be for the Supreme Court to both restore Trump to the ballot in Colorado and make him go to trial on election subversion charges in Washington this spring. Together, these decisions let the voters decide if Trump really is disqualified from serving as president.

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And yet, the rationale for keeping Trump on the ballot that seemed to be gelling at Thursday’s oral argument could open the door to something politically dangerous down the line. Suppose the Supreme Court holds that the unique federal interest in the presidential election (or all federal elections) means that states cannot use disqualification under the 14th Amendment to remove a candidate from the ballot, perhaps absent some congressional authorization. Such a ruling would still allow Congress, our national body, to disqualify Trump.

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And such congressional disqualification might not come before the election, but instead come after. As I spelled out in a Supreme Court amicus brief supporting neither party, filed with professor Edward Foley and GOP lawyer Ben Ginsberg, there is a big risk of disenfranchisement and chaos if the court issues a ruling that punts on the question of whether Trump is disqualified and leaves the question to Congress. If Trump appears to win the election in November and Democrats control Congress, there will be a serious effort to disqualify Trump when Electoral College votes are counted in January, something that would risk political instability and even violence. Kicking the can down the road in this way is dangerous.

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And perhaps this is why Justice Kentanji Brown Jackson appeared to be embracing what I consider to be a weak textual argument that Section 3 of the 14th Amendment does not apply to the presidency. She noted that the president is not named explicitly as one of the offices for which disqualification applies in the amendment, and said that the history showed that the amendment was really aimed at what was going on in the Southern states after the Civil War, where local authorities were more likely to be Confederates. The argument is weak because it would be an absurd rule to disqualify insurrectionists from serving in every office in the land except for commander in chief, an issue that even Trump’s lawyer Jonathan Mitchell conceded at oral argument. It’s also weak as a textual matter, because the disqualification provision applies to “offices” of the United States, which should include the presidency.

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And yet, the Justice Jackson approach has great practical appeal. A ruling along Justice Jackson’s lines would say that disqualification does not apply to the presidency at all, which would make it exceedingly unlikely that congressional Democrats would try to not count any Electoral College votes for Trump cast in November.

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Would the court write an opinion that relies, at least in part, on some shaky reasoning to reach a result that definitively resolves an election in a way that the justices think is the most politically expedient? Yes, we’ve seen this move before, where the court embraced a new and controversial equal protection rationale. See Bush v. Gore. Heck, the justices in the disqualification case could include the Roberts “race to the bottom” argument too, so that there’s a more persuasive rationale in the opinion for reaching the result that Trump remains on the ballot. That’s like how three conservatives in the Bush v. Gore majority also embraced an alternative rationale for siding with George W. Bush in the contested 2000 election, a rationale that the Supreme Court last year appeared to embrace.

The bottom line is that if and how the court rules for Trump in the disqualification case, and as it considers sending him to trial on election subversion, it needs to keep an eye on what’s going to happen in January if Trump appears to win. If there’s going to be a grand bargain, the court should not forget what Congress might do.

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QOSHE - A Grand Bargain Is Emerging in the Supreme Court’s Trump Cases, but Chaos May Be Ahead - Richard L. Hasen
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A Grand Bargain Is Emerging in the Supreme Court’s Trump Cases, but Chaos May Be Ahead

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08.02.2024
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After oral arguments at the Supreme Court in Trump v. Anderson, a grand bargain that appears to make practical sense as a compromise is beginning to come into view: The Supreme Court unanimously, or nearly so, holds that Colorado does not have the power to remove Donald Trump from the ballot, but in a separate case it rejects his immunity argument and makes Trump go on trial this spring or summer on federal election subversion charges. Depending upon how the court writes its opinion, however, it could leave the door open for chaos in January, if Donald Trump appears to win the 2024 election and a Democratic Congress rejects Electoral College votes for him on grounds he’s disqualified. Justice Ketanji Brown Jackson, however, may have seen this danger and found a way around it. If the court’s going to side with Trump in the disqualification case, it should embrace Justice Jackson’s rationale, even if it is not the most legally sound one.

Since the Colorado Supreme Court removed Trump from the ballot on grounds he engaged in insurrection, rendering him disqualified under Section 3 of the 14th Amendment, most close observers of the U.S. Supreme Court expected a reversal: The idea that a single state could remove a leading presidential candidate from the ballot seemed both politically fraught and a bad political precedent.

It was clear from Tuesday’s oral arguments that many of the justices shared this view. Chief Justice John Roberts in particular was concerned about a race to the bottom in which Republican states try to take Joe Biden off the ballot and it becomes a kind of free-for-all. More liberal Justice Elena Kagan expressed a similar view about the unique federal interest in not leaving this to the states. Justice Amy Coney Barrett flagged the “first mover” problem, in which whatever state disqualifies first would make factual findings that would be binding on the nation. In fact, listening closely to the........

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