The U.S. Supreme Court is likely to strike down a Colorado court ruling that removed former President Donald Trump from the state’s ballot. However, the conservative majority on the highest court is likely to do so in a narrow way that doesn’t get into the weeds of whether President Trump’s actions constituted insurrection, according to a constitutional law expert.
The Supreme Court may say the 14th Amendment’s disqualification clause doesn’t apply to the president, predicted Horace Cooper, senior fellow with the National Center for Public Policy Research, who formerly taught constitutional law at George Mason University.
The Colorado Supreme Court ruled on Dec. 19 that President Trump is to be barred from the state’s ballot because he “engaged in insurrection” by inciting his supporters to storm the U.S. Capitol on Jan. 6, 2021.
Because, under Colorado election law, only qualified candidates can be placed on the ballot, it would be “wrongful” for the secretary of state to allow on the ballot a candidate disqualified under Section 3 of the 14th Amendment, which bars from office anybody who has previously taken an oath of office and later engaged in an insurrection, according to the ruling.
Lawyers for the former president immediately announced that they intend to appeal the ruling to the U.S. Supreme Court.
“The Supreme Court is highly likely to take this case fairly quickly,” Mr. Cooper told The Epoch Times.
The Supreme Court doesn’t have to address the issue right away. It can put the state decision on hold and wait to issue a ruling until after the Colorado primary. But it’s unlikely that it would try to wait until after the next president is sworn in in 2025 and then declare the issue moot, he said.
“I don’t think they can get away with a 13-month delay,” Mr. Cooper said.
A major reason why the court is likely to step in quickly is because similar efforts are underway in other states, including New York, California, and Pennsylvania.
In Michigan, a district court struck President Trump’s name from the ballot, but the ruling was reversed on appeal. The case appeared to be over, but after the Colorado decision, the Michigan attorney general filed an appeal to the state’s Supreme Court.
“[It’s] not a question that you can just stall your way out of,” Mr. Cooper said.
The U.S. Supreme Court will probably reverse the Colorado court but will likely look for a narrow way to do so, he predicted.
“There are some who want the court to weigh in on the question of insurrection. They want the court to weigh in on the issue of whether or not the actions that some ... or, maybe, many have observed of Donald Trump constituted insurrection—even if not charged and certainly not convicted,” Mr. Cooper said.
“The Supreme Court is highly unlikely to weigh in on that.”
The 14th Amendment doesn’t specifically list the presidency among the offices to which the disqualification clause applies, but the Colorado court argued that the reference to “any office, civil or military, under the United States” covers the presidency and that the historical record indicated that the amendment wasn’t meant to exclude it.
However, Mr. Cooper predicted that the Supreme Court may take the opposite side of that argument, as it would allow it to dissolve the issue without getting into the weeds of what President Trump did or didn’t do.
“A more conservative court often tries to resolve a matter in the most straightforward way possible with the minimum need for a deep engagement on the part of the court. So I would say it is actually highly likely that they simply say, ‘As a matter of statutory construction, the office of the presidency was never contemplated for this,’” he said.
Mr. Cooper pointed out that the 14th Amendment was ratified in 1868 to exclude former Confederates from positions of power.
“Their target was specifically the Confederacy. Their target was not anyone who supported the French in the French-Indian War. Their target was not anyone who supported the British in the British-American War. Even though the language isn’t written in a way to limit those, the rationale was the Confederacy,” he said.
“The further away you get from a construction involving actual people who had engaged in military rebellion against the government, the more careful you’re going to have to be about your reading.”
The justices, particularly the conservative-leaning ones, will try to avoid passing judgment on the insurrection rhetoric applied against President Trump.
“The Supreme Court does not desire to own the question, ‘Does the behavior that people have seen of Donald Trump constitute insurrection?’ They do not wish to own that,” Mr. Cooper said, although he acknowledged that “there are some on the left who want that very question to be answered.”
Chief Justice John Roberts is particularly keen to keep the court away from political imbroglio, he said.
“If you look at a more conservative court, their typical response is always a more narrow construction. So here you’re going to have Chief Justice Roberts likely either writing the decision—which I predict—or deciding who will write the decision. In either case, his view is going to be that it be a simple and narrow way to overturn the case that Colorado has put forward,” Mr. Cooper said.
He speculated that even some of the justices in the left-leaning minority may join the decision, as it may allow them to keep the court less involved in the 2024 election.
Mr. Cooper recalled the 2000 election, when the Supreme Court felt compelled to issue a stop order to halt recounts in Florida, only to be accused of interfering with the election.
“Many of the justices say that they are very unhappy with what happened to their reputation because they did that. If you ask them, would they like to do this again? Most of the justices, including the chief justice, will tell you ‘no,’” he said.
In Mr. Cooper’s view, simply declaring that the disqualification clause doesn’t apply to the president would allow Chief Justice Roberts to minimize election entanglement.
“He’s going to try to do it in the narrowest way possible so that it is not a determination where I’ve decided who can be a candidate and who cannot be a candidate. I’m only deciding whether or not Colorado understood the law,” he said.
It would’ve been prudent for the Colorado Supreme Court to try to stay out of the election, too, Mr. Cooper suggested.
“The Colorado Supreme Court really took a risk that it might get smacked down by the U.S. Supreme Court. And yet it did not, when evaluating that risk, try to act in a way that demonstrated restraint,” he said.
Mr. Cooper noted that the state court decision was split 4–3, with the chief justice dissenting.
The dissent showed the proper reticence toward election meddling, presenting a narrow argument that “nothing in Colorado law gives this power” to the secretary of state to strip candidates from the ballot based on the disqualification clause, he said.
The dissenters avoided the insurrection issue and settled on saying that “our statutes never were intended to give us this authority,” according to Mr. Cooper.
“That was the way out,” he said.
