Trump’s ballot removal cases hinge on these key questions

For the first time in U.S. history, the Supreme Court is considering whether a presidential candidate can be removed from the ballot for reasons such as:engaged in rebellion”It is against the Constitution.

A hearing will be held before a judge on February 8th. argument In Trump v. Anderson, the Colorado Supreme Court has already control Former President Donald Trump “incited and engaged in an insurrection on January 6, 2021, after taking the oath of office as President to uphold the Constitution of the United States,” which led to his insurrection under Section 3 of the Fourteenth Amendment to the United States Constitution. He is said to be disqualified.

Trump v. Anderson is certain to be the most important election case since 2000. Bush vs. Gore In effect, he was appointed president. The issue is complex, requires new judgments of both fact and law, and an outcome unfavorable to Trump carries the implicit threat of anarchy.

The critical complexity of this case can be best understood by considering the typical journalistic questions: “Who, what, when, where, and how?” (But not in that order.)

Some of the answers are simple, but others are much more complex. The following are arranged in ascending order of difficulty:

First, the simplest question. what Is it about the incident?

The case arose under Section 3 of the Fourteenth Amendment to the Constitution, passed after the Civil War, which prohibits anyone who engages in rebellion or rebellion after previously taking the oath of office. It imposes broad disqualification from state or federal office. The Colorado Supreme Court found that “clear and convincing evidence” did show that the events of January 6 “constituted” an insurrection and that “President Trump ‘participated’ in that insurrection through his personal actions.” I decided that.

Trump, of course. Deny Both propositions also raise the somewhat difficult argument that the president is not an “officer of the United States,” which is subject to the disqualification clause.

Now it’s a little more difficult. when Do the terms apply?

Even if the office of president falls under Article III, considering that the specific language of the amendment only says, “No person shall…” disqualification would not be triggered until after the election. Trump insists he won’t. . . “He will run for any office,” he said, without making any mention of his candidacy. That would make the Colorado Supreme Court’s decision legally “infant” and make him eligible to vote even if he is later determined to be ineligible for president.

There are also thorny ethical issues. who Are you going to decide?

The Supreme Court has nine justices, one of whom has a clear conflict of interest. The most important factual question in the case is whether the Jan. 6 attack on the Capitol constituted an “insurrection” and whether Mr. Trump incited or participated in it.

Justice Clarence Thomas’ wife Virginia attended a rally attended by President Trump shortly before the attack. Recommended The crowd will “fight like hell.” In the weeks before the rally and attack, she exchanged dozens of text messages with Trump’s chief of staff, Mark Meadows, urging them to:release the kraken” between other “Relentless Efforts to Overturn the 2020 Presidential Election”

In other words, Virginia Thomas could be a witness to the very events at issue in this case. Under the Supreme Court’s recently adopted code of conduct, judges are disbarred from proceedings in which their spouse is likely to be a “material witness.” Nevertheless, Thomas appeared to vote in favor of accepting the case for retrial, giving his full opinion. display He said he intended to participate in determining the merits of the case.

Traditional legal terminology is very problematic. how The case will be solved. President Trump has filed both substantive and procedural challenges to the Colorado Supreme Court’s decision, some of which are discussed above.

In effect, he argues that there was no insurrection, that he never encouraged one, and that the presidency is not covered by Article III. Procedurally, he argues, Colorado’s decision was premature. President Trump has also argued that Section 3 is not “self-enforcing,” meaning it can only be enforced by federal law (although there is currently no such law) and not by state election officials.

Finally, and potentially most troubling, where Does the judgment apply? A victory on any of Trump’s various claims would put him back on the ballot in Colorado. However, the results for other states could vary significantly depending on the nature of the court’s decision.

Trump v. Anderson officially includes only the Colorado case. Therefore, the Supreme Court could rule in Trump’s favor on narrow grounds, such as the sufficiency of certain evidence in the Colorado court, while broader legal issues remain unresolved. In such a situation, it is entirely possible that other states, based on additional evidence, would make inconsistent decisions regarding Mr. Trump’s ultimate presidential candidacy.

Trump is Trump, but if he loses there will likely be further chaos, with the Supreme Court excluding him from Colorado’s ballot. Even if Trump is found to be ineligible, it will automatically remove him from red state ballots, especially if it appears to be evasive or is even slightly ambiguous. Not that it will be done. That will require local compliance. But Republicans now control the election machinery. 27 states.

So no matter what the Supreme Court says, there’s a good chance Trump’s name will appear on election ballots in most or all of these states, and he’ll likely win a majority of the electors. Will Vice President Kamala Harris count the number of such electors officially certified by state governments, even if it goes against the Supreme Court’s ruling?

There are few easy answers to many of the most vexing questions faced by judges, and journalistic analysis can only go so far. In any case, the best results will be achieved if the court speaks clearly, preferably with one voice. Otherwise, any decision is unlikely to save the country from chaos.

Stephen Lubet is Williams Memorial Professor Emeritus at Northwestern University Pritzker School of Law.