Trump is challenging decisions by the Colorado Supreme Court and Maine’s Democratic secretary of state to disqualify him under the 14th Amendment’s ban on “insurrectionists” in the wake of his supporters’ mob attack on Congress that followed his campaign to overturn the 2020 election.

In his petition to the Supreme Court Trump argues that he did not take part in an insurrection; that his eligibility should be determined by Congress, not the courts; and that the insurrectionist ban did not apply to the presidency in any case.

Any ruling from the US Supreme Court would be the final say on whether Trump is eligible to appear on the primary ballot in Colorado, Maine, and other states where his eligibility is being challenged. One reason the court is under intense pressure to take the Colorado case is to clarify the meaning of Section 3 of the 14th Amendment, which says that no person shall hold any office under the United States who, “having previously taken an oath … to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

In a more practical sense, the onus is on the Supreme Court to weigh in because a situation where some states decide to bar a candidate based on their own interpretation of the amendment and others do not is untenable not just for the 2024 election but also for US democracy in generations to come.

Key questions rely on whether Trump’s falsehoods about 2020 election fraud, his call to his supporters to rally in Washington, DC, on January 6, 2021, and for them to “fight like Hell” to save their country before the riot amount to engagement in an insurrection. Even if they do, the question then becomes, who has the power to make the determination that someone is an insurrectionist? The 14th Amendment was applied extensively after the Civil War to disqualify ex-Confederates from public office, but its use outside that context is mostly untested — certainly as it pertains to a former president.

The Colorado Supreme Court found in its stunning decision last month that Trump did incite an insurrection and, even when the siege on the US Capitol was fully underway, continued to support it overtly and directly. In Maine, the Secretary of State wrote that while no secretary of state had ever deprived a presidential candidate of ballot access based on the 14th Amendment, “no presidential candidate has ever before engaged in insurrection.”

The case rests on whether the 14th Amendment’s insurrectionist ban relates to the president himself. The issue is not whether Trump participated or gave any comfort to insurrectionists but whether Article 3 of the 14th Amendment actually applies to the president. The article in question does not specifically mention the president. The oath that a president takes to preserve, protect and defend the Constitution is different from that taken by other officials to “support” it, cited in Article 3. This would back up the idea that a president is distinct from other public officers mentioned in the 14th Amendment.

The question of Trump’s ballot access is critical ahead of the next election, but its resolution could also be vital to heading off the specter of yet another disputed vote that would only carve new fractures in national unity.

What will the U.S. Supreme Court do?

  1. Uphold the Colorado ruling and say Trump is no longer qualified to be president.
  2. The court could say Trump is qualified to be president. That would end all Section 3 challenges, including in Maine.
  3. It could dodge by overruling Colorado on a technicality about the procedures used to get the case there and set itself up for another case in the fall.
  4. It could say Congress makes the final decision.

There are several routes the court could take that fall short of disqualifying Trump from the presidency or even deciding whether he engaged in insurrection.

  1. It could decline to rule expeditiously, which would leave that central question in limbo but could effectively keep Trump on the ballot in both Colorado and Maine. (Both states’ decisions are stayed pending appeals.)
  2. It could rule that states are allowed to remove Trump from the primary ballot under their interpretations of the 14th Amendment but stop short of applying that to the more consequential general election ballot.
  3. It could say that a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.
  4. The court could punt. That could involve saying that Trump must first be convicted of insurrection, saying the 14th Amendment isn’t self-executing (in other words, Congress must pass a law detailing how it is to be enforced), or doing what a Denver district judge initially did and ruling that the 14th Amendment doesn’t apply to presidents. The court could echo that judge in another way: also finding that Trump engaged in insurrection, an outcome he called “the closest thing for a court to a win-win" in such a fraught case.
  5. The court won’t be keeping Trump off the ballot, but it won’t be endorsing his candidacy, either. If anything, having Republican appointees joining Democratic appointees in holding that Trump did engage in insurrection might go a long way toward persuading those who are capable of being persuaded to cast their vote for someone else.

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