The Supreme Court‘s pending decision on whether former President Donald Trump should be on Colorado‘s Republican primary ballot makes this Super Tuesday unlike any other.
With Trump’s legal problems upending this election season more broadly, the Supreme Court’s decision, which could be announced on Monday morning, could similarly upend Super Tuesday’s primary results in Colorado and Maine before Illinois votes later this month.
Colorado Republicans and unaffiliated voters have been able to cast a ballot for Trump. But if the Supreme Court decides in Trump v. Anderson that the former president was ineligible to be on Colorado’s ballot, pursuant to the Constitution‘s 14th Amendment insurrectionist clause, those votes will not be counted, and Trump will not be on the state’s ballot for November’s general election, according to the Colorado Republican Party.
Colorado Republican Party Chairman Dave Williams explained that if the Supreme Court does decide against Trump, the Colorado GOP will “ignore” the state’s Super Tuesday primary results and depend, instead, on the state party’s caucuses from March 7-9 and state Assembly on April 7 to allocate its 37 Republican National Convention delegates.
“Those delegates will most likely be Trump delegates,” Williams told the Washington Examiner. “This isn’t helpful to democracy; this flies in the face of it, and ultimately, the right thing to do is to allow voters to vote for a candidate of their choosing.”
Trump similarly will appear on the ballot in Maine, but until the Supreme Court decision, it’s unclear whether his votes will be counted. Last month, the office of Maine’s Secretary of State Shenna Bellows confirmed to the Washington Examiner that votes for Trump “would simply be treated as blanks,” though the Maine Republican Party will acknowledge the ballots so it can allocate its national delegates.
“We’re not only harming free and fair elections in this country, but we’re also encouraging a retaliatory response, whereby red states will start to disqualify President Joe Biden, and that’s not good policy,” Colorado’s Williams, a state House lawmaker, said. “The best thing to do is to allow voters to decide who their president should be in the court of public opinion, not in a court of law.”
Although some constitutional law scholars and practitioners agreed with Colorado’s interpretation of Section 3 of the 14th Amendment, the Supreme Court appeared skeptical during February’s oral argument, undercutting an Illinois court’s decision last week to follow Colorado and Maine’s precedent and rule that Trump is ineligible for its ballot over his role in the Jan. 6, 2021 attack on the Capitol.
“What the Constitution does is it sets the policy in terms of who is eligible to run for president,” Center for Constitutional Litigation founder and President Robert Peck told the Washington Examiner. “So, for example, if Colorado voters had elected as the nominee for the Republicans someone who was … only 30 years old, they’d be ineligible to serve as president and it would be ineffective.”
“Now, if the court decides that Colorado has the authority to determine that he was an insurrectionist and therefore ineligible, it would have that same effect,” he said. “However, we do know from the questions that were asked that, the tenor of the oral argument, that result seems to be unlikely because an alternative policy consideration that the court seemed to be concerned about is whether one state could affect the election of a president just because it, by itself, determined that a president was ineligible.”
During two hours of oral argument, even Supreme Court Justice Elena Kagan, nominated by former President Barack Obama, underscored how it would be “extraordinary” for Colorado to have such power in an election.
Robert Kelner, who chairs Covington & Burling LLP’s election and political law practice group, was of the opinion that the Colorado Supreme Court’s decision, of which Trump v. Anderson is an appeal, “is almost certainly wrong.”
“It is very far from clear that Section 3 of the 14th Amendment was intended to apply to the president,” Kelner said. “At oral argument, it was actually Justice Ketanji Brown Jackson who made the point that the language of the 14th Amendment notably leaves out any reference to the president, even though the language expressly cites members of Congress and others.”
“On top of that, you have the fact that Donald Trump has been investigated by numerous prosecutors, and none of them have charged him with insurrection, including Jack Smith,” he added. “It’s really hard to see a candidate excluded from the ballot on the basis of insurrection when even prosecutors who look closely at the case did not see a basis for charging him.”
For Peck, Trump v. Anderson is an example of a case in which the Supreme Court could decide to take “constitutional politics” into account.
“If you read Section 3 of the 14th Amendment to say that an insurrectionist is ineligible to be president and are satisfied that then-President Trump’s actions on Jan. 6 and subsequent to that were sufficient to label him an insurrectionist, then you would say that he is not eligible and that is not a democratic choice,” he said. “But it’s actually a choice that supports democracy because it prevents people who would rebel against the government from serving as its leader. … So the question is, do we temper our democracy with constitutional limitations or not?”
Rather, Kelner implored the Supreme Court to “just stick to its knitting on interpreting the law and not worrying about how its decision might affect … public perceptions of our institutions.”
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“People are so polarized right now that, no matter what the Supreme Court does, partisans on one side or the other will claim that the court’s decision undermines faith in democracy and our judicial system,” he said. “I just think everybody is divided into their separate camps.”
Alabama, Alaska, Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia are holding presidential primaries on Super Tuesday, with Iowa Democrats completing their mail-in caucus next Tuesday as well.
