Disqualification Suit Supremo Begins
Daily Disqualification Update | Really my own fault for planning a Christmas break, innit?
In October and November, I exhaustively covered the Minnesota Disqualification Suit against former President Donald Trump. You can read all my prior coverage here:
Minnesota Disqualification Week: Orientation
While I’ve written quite a bit about disqualifying President Trump recently (see here, here, here, and here), there is a…
Tonight came the big, big news: Colorado’s Supreme Court has gone where Minnesota’s didn’t dare. They ruled, 4-3, that Trump is disqualified. (All 7 are Democratic appointees.) I am still reading the decision:
Within minutes of the opinion, though, I started to get messages from readers (love you all, thanks for asking!): When will De Civitate write about this?
I vowed months ago not to cover disqualification suits in other states, such as Colorado and Michigan. This was partly because I offered nothing special in those cases. I don’t live in those states and I don’t know their laws like I know Minnesota’s.
It was also because of my limits. By oral arguments week in the Minnesota Disqualification Suit, I had set aside many of my real-world obligations (except my day job and my children) in order to keep things moving… and I was still getting less than five hours of sleep every night! One can only keep that up for so long after one has graduated from college.
However, the Colorado case will now go to the Supreme Court. Its outcome will almost certainly determine the outcome of the Minnesota Disqualification Suit. Therefore, I think I’d better cover it. It will be nice returning from the terra incognita of my state supreme court to a federal Supreme Court whose internal dynamics I understand pretty well.
Unfortunately, I have some unavoidable conflicts for the next several days that will prevent me from writing again until December 27. So, tonight, I had better tell you what you need to know for the coming week! I typed this up in a bit of a rush, and—as always—I apologize for any typos, other errors, or plain sloppy thinking that arise as a result of my trying to get this into your hands within twelve hours of the decision.
What Just Happened
The Colorado Supreme Court ruled 4-3 that President Trump is disqualified from appearing on the Colorado ballot by Section Three of the Fourteenth Amendment, which bars oathbreaking insurrectionists from taking office in the United States. Specifically, Colorado held:
Section Three encompasses the office of the Presidency and someone who has taken an oath as President.
This will certainly be appealed to the U.S. Supreme Court.
I wrote about this question here, where I called it Mr. Trump’s strongest argument.
Section Three operates even in the absence of implementing legislation from Congress and is, in that sense, “self-executing.”
This will certainly be appealed to the Supreme Court.
This is the only major issue I haven’t written about (yet!!), but I provided some links for further reading here.
Judicial review of President Trump’s eligibility is not precluded by the political question doctrine.
I am uncertain whether this can be appealed to the U.S. Supreme Court, and I don’t have time to find out before I disappear for a week. I think it can, but I don’t want to swear to it.
I wrote about whether the political question doctrine applies to Trump here.
The Colorado voters who filed this suit have standing under the Colorado Election Code.
This is a state-law issue. It cannot be appealed to the U.S. Supreme Court.
I wrote about standing under Minnesota law here, but it doesn’t shed much light on the Colorado law, which is quite different.
The January 6 Report can be admitted into evidence at trial.
This is a state-law issue. It cannot be appealed to the U.S. Supreme Court.
The events of January 6 are fairly labeled “insurrection” and President Trump is fairly said to have “engaged in” that insurrection.
Portions of this issue can be appealed. Other portions cannot. I will explain below.
I wrote my indictment of President Trump’s insurrection here.
My friends who support Trump generally replied to that article by saying that they were literally unaware of the events I described, so, if your reflex is to insist that J6 was not an insurrection and Trump had nothing to do with it anyway, I ask you to please read that article before you decide for sure.
President Trump’s speech inciting the crowd on J6 was not protected by the First Amendment.
This will certainly be appealed to the U.S. Supreme Court.
I never focused much on the speech’s First Amendment protection, because I didn’t consider it very relevant to the case, so I haven’t written extensively about it. Everyone else has made a big deal out of it, though, so maybe I should shape up.
The Colorado Supreme Court therefore concluded that former President Trump must not appear on the Colorado ballot for president, either in the presidential primary or in the general election. Their order is binding on all officials within the state of Colorado, including the Colorado Secretary of State. It has no impact outside the state.
Three Colorado justices dissented from Colorado’s decision. Two dissented (separately) on state-law grounds, arguing (for different reasons) that the Colorado Election Code was not written to allow cases of this type. However, they were outvoted, and, since “what the Colorado Election Code means” is a state-law question, that is not an issue that the U.S. Supreme Court can consider on appeal. (The U.S. Supreme Court issues final rulings only on federal law.)
The remaining justice, Justice Samour (appointed by Democratic Gov. Hickenlooper in 2018) dissented because he disagrees that Section Three is self-executing, at least insofar as this case requires it to be.
To be extremely clear: I have, at best, skimmed these four opinions at this point. I have much to read during the next few days!
The ruling will require Colorado officials to keep Trump off the ballot. However, the Colorado Supremes (or “SCOCO,” which is fun to say) stayed the ruling until January 4, if Trump does not appeal. If there is an appeal, its ruling is stayed until the appeal is resolved. While the ruling is stayed, Colorado law remains status quo: Colorado officials must print Trump’s name on ballots until the stay expires.
Team Trump has announced it will appeal. Because of this oddly-structured stay, however, they could wait until as late as January 3 to actually file their appeal. I don’t know if they will. Heck, maybe they filed while I’ve been typing this. Who knows? But sometime between now and January 3, Trump will appeal.
What About Standing?
If the Colorado voters had lost this case, that would have been the end of the Colorado Disqualification Suit (just like the Minnesota Disqualification Suit was shut down by the Minnesota Supreme Court). To file a lawsuit in court, you must have standing, which usually means that you have to have been directly injured by the person you’re suing. (A whole lot of precedent says that “ineligible candidate on ballot” is not a direct injury.)
However, the Colorado Election Code grants standing to voters in this case anyway. It has a provision that allows voters to sue in state court over qualifications, even without a direct injury. (Minnesota has a parallel provision, Section 204B.44.) That’s why the Colorado voters were allowed to sue in Colorado court.
Federal law, however, does not say anything about suing in federal court over candidate qualifications. Without a direct injury, the voters couldn’t take this to federal court. If they had lost, they would have had no direct injury, no special statutory standing, and thus no way to get in the door of a federal courthouse.
However, since Trump lost this case, he does have a direct injury: he’s being removed from the Colorado ballot! That is enough of a direct injury for him to sue in federal court. He is the one who has standing here.
What Happens Next
Ordinarily, when you take a court from state court to federal court, you move to the local federal district court (in this case, the U.S. District Court for the District of Colorado) and work your way up the chain: first to a federal appeals court, then, if you’re very lucky, to the U.S. Supreme Court. However, this case is an exception: there is a federal law (28 USC 1257) which says (in layman’s terms) that, if a state’s supreme court interprets federal law in a ruling, the ruling can be appealed directly to the U.S. Supreme Court.
So that’s exactly what’s going to happen. Things could have become messy if Trump had chosen to write off Colorado by simply not appealing the case (did I hear the phrase “nonmutual collateral estoppel”?!). Fortunately, Trump’s team has announced they are appealing, so we don’t have to worry about that particular potential mess.
Over the next few days (but before January 4), Trump will file a petition for certiorari before the U.S. Supreme Court.1 Certiorari is Latin for “to be made more certain.” For all practical purposes,2 it just means “we’re asking the Supreme Court to hear an appeal.” This called the cert petition. The easiest way to find it will be to check SCOTUSBlog’s docket page.
I’m sure Team Trump will will also ask for expedited proceedings, which is a separate filing.
Within a short time, the Colorado voters pressing this case will file a brief responding to the cert petition. Normally, the opposition argues that the Supreme Court should not grant cert. After all, the opposition won at the lower court, and, if the Supreme Court refuses cert, their win is locked in forever!
However, in this case, I’m not so sure. Both sides really want the Supreme Court to resolve this at the national level, not just for Colorado, and nobody wants four progressive judges to strike a major candidate from the ballot without any higher review (least of all those four judges!). The Colorado voters might just take the rare step of supporting the cert petition.
There is no doubt in my mind that the Supreme Court will grant the cert petition.
That’s not because they want to. They certainly do not. They want this case to go to the Appeals Court for the Ninth Circuit of Hell Itself. The Supremes have gone way out of their way to avoid Trump election cases that they really ought to have taken, even when they would have had no effect on the outcome. Nobody at One First Street wants to thrust the Court into the dead center of a white-hot political supernova, least of all the Chief, who hates and fears politics so much he has turned all of his recent opinions in high-profile cases into political maneuvering instead of law. (You have become what you swore to destroy, John!)
Yet what’s the alternative? If they don’t take this case—and they don’t technically have to—then Trump gets struck off the ballot in Colorado. Seeing SCOTUS’s tacit approval, other states will inevitably follow. Minnesota will be first in line, I suspect. It could be chaos. The U.S. Supreme Court will step in to deliver a final, binding judgment that affects all fifty states.
So they’ll grant cert.
The only question is when. They don’t have to rush this. The general election is still months away, and there’s still plenty of time for the GOP to pick a new candidate even if Trump sweeps the early primaries and secures an absolute majority of delegates. But, on the other hand, a primary conducted under this Sword of Damocles might not be ideal for American democracy, either. The Supreme Court will have to make a judgment call about how quickly to move this case. That is a political judgment, not a legal one, but it is a political judgment within the Supreme Court’s (extremely limited) political discretion.
Once cert is granted and schedules set, we will start to see amicus curiae briefs flow in. I’m not sure any case in history, including Dobbs, has ever been such obvious catnip for constitutional law professors who want to file amicus briefs. There could be a flood of them, on both sides of every disputed question.
We will also see briefs from the main parties: Trump and the Colorado voters who oppose him. Alas, my boy Ron Fein isn’t involved in this case, and I didn’t think very much of the Colorado plaintiffs’ initial lower-court filings, but, nevertheless, these major briefs will almost certainly look almost exactly like the major briefs that flowed into the Minnesota Supreme Court two months ago, making exactly the same arguments:
Section Three is/is not enforceable absent implementing legislation from Congress (“self-execution”)
Donald Trump is/is not covered by Section Three, because he was/was not an “officer of or under the United States.”
The events of January 6 were/were not an insurrection.
President Trump did/did not engage in that insurrection.
Again, we’ve seen all these arguments before. If you’ve read the documents in my Orientation Week post from October, the new documents are going to look a whole heckuva lot like those documents. They might be more refined after being tested in the lower courts, and of course the state-law issues won’t be included at this level, but the arguments will be essentially the same.
Limitations of the Supreme Court
The U.S. Supreme Court is a court of law, not a finder of fact. In our system, trial courts are the finders of fact.
That isn’t a very important distinction when we look at the “self-execution” and “officer of the United States” questions, because those are pure questions of law. The only facts you need to know are what the law itself says and what that law itself means. The few relevant facts specific to this case (e.g. “Donald Trump was President”) are not in dispute.
However, this becomes a very important distinction when we look at the “insurrection” questions, because those are questions of both law and fact. The questions of law are, basically, “What counts as an insurrection?” and “What counts as ‘engaging’ in an insurrection?” The questions of fact are, “Was January 6 an insurrection,” and, “If so, did President Trump engage in it?”
The Supreme Court can consider the questions of law however it wants to consider them, granting little or no deference to the lower courts. However, the Supreme Court is required to accept the findings of fact made by the Colorado District Court. Those findings are given in the district court ruling, on pages 25-60. You should probably read those through (I should probably read those through), because the U.S. Supreme Court is generally forced to accept them.
This is not always true. The Supreme Court can, legally, reject a finding of fact if it is “clearly erroneous.” If the lower court reached a factual conclusion that just isn’t supported by the evidence presented, the Supremes can toss it.
Moreover, it is regrettable to have to mention this, but this is the U.S. Supreme Court, who answers to no one, so they can do whatever the hell they want. So far, the Barrett Court has (in my opinion) been more keenly protective of precedent (and similar procedural concerns) than any other recent court, so I have high hopes that we won’t see any major deviation here. However, this is the highest-pressure case the justices may ever face, so the temptation to discard an inconvenient finding of fact may be overwhelming.
The findings of fact in this case are fairly damning for Trump. (This is because Trump did a bunch of extremely damning things on January 6!) This limits the Supreme Court’s running room to escape the legal conclusion that Trump engaged in an insurrection. They can change the legal meaning of the meaning of the words “engage” and “insurrection,” but they can’t change what he did.
I also should note that Team Trump seems to have done its client no favors here. The district court ruled that the correct standard of evidence in this case is preponderance of the evidence (and found Trump still liable even on a higher clear-and-convincing evidence standard). I have previously argued that preponderance is the correct standard under Minnesota law, and I guess the same was true under Colorado law. Trump could have appealed this to the Colorado Supreme Court… but, because Trump consistently hires less-than-tier-one lawyers and always has, they failed to actually do so, and so SCOCO ruled in favor of the plaintiffs on this issue without discussion.
That means Trump is now stuck with the preponderance of evidence standard. The Colorado voters don’t have to prove beyond a reasonable doubt that Trump did an insurrection; he is off the ballot as long as they can show that it is more likely than not that he did an insurrection.
Who Will Win?
Let’s just try counting to five on this one:
The progressives (Kagan, Sotomayor, and Jackson) will all rule that Trump is disqualified. I don’t think this is because they will buy into the (heavily originalist) legal arguments. I think they will do it out of anti-Trump animus first, legal arguments second. This assessment might be a little unfair to Kagan and possibly to Jackson, but it’s spot-on for Sotomayor. Either way, that’s three votes against Trump if there’s any plausible shot at disqualifying him.
I predict that Gorsuch rules that Trump is disqualified, because Gorsuch is a textual fanatic (which is why I love him). The man don't give a damn what the outcome is; he goes where the text leads. See Bostock (where he almost certainly strongly opposed the policy result of his own vote) and McGirt (where he split Oklahoma in two). In my opinion, disqualification is what the text clearly requires, and therefore what Gorsuch will conclude. However, I worry very much that I will lose him on the “officers of the United States” business.
Roberts is hard to read. He despises Trump, and has often gone out of his way to rule against Trump in cases where any other conservative would have easily won. He thinks Trump is a force of destruction and wants him gone yesterday. However, Roberts is also an institutionalist, obsessed above all else with the power, prestige, and politics of the Supreme Court. Disqualifying Trump will devastate Republican faith in the Supreme Court (while perhaps mollifying Democrats still mad about Dobbs). On the other hand, not disqualifying Trump could harden Democrats’ animus against the Court. Regardless, John Roberts will not decide this case based on the law. He will decide it based on his big-brained guess about what the political consequences will be for his beloved court. He could be a fifth vote.
Barrett doesn’t want this case maybe even more than Roberts doesn’t want this case. She thinks it’s important and proper to avoid cases that put the Court in a tough position. But her whole central thesis in her paper Precedent and Jurisprudential Disagreement, and her practice as a justice, has been to honestly resolve cases that come before the court by her own most honest lights—even the ones she would have preferred not to take (although sometimes she resolves them very narrowly if she’s nervous, as in Fulton). The Colorado Disqualification Case is now before the Court. She will do her best to resolve it honestly. I think that’s good news for the plaintiffs, because I think plaintiffs are legally correct. She could be an alternative fifth vote if Roberts falls through.
Thomas also looks at every case honestly, but I think that he comes to the table with some biases that will be difficult for him to overcome: a legacy of Black candidates being refused ballot access in the Jim Crow South, a strong pre-existing sympathy for Trump and his administration, a disdain for the progressive movement in general. He reads a lot of right-wing media which has pre-judged this case as meritless. (One recalls how many left-wingers, even some judges, were shocked when the Supremes took the Obamacare cases seriously, because they had been primed by their own media sources, like the New York Times, to pre-judge the case as meritless.) We’re all subject to cognitive bias, and I suspect Thomas, even as he tries to approach the case fairly, will not be able to overcome his in this case. I love the guy, but likely a vote against.
Kavanaugh really wants everyone to get along. He has a mortal fear of being hated. It’s hard to square his “let’s all be pals, I respect everyone in this case” persona with a willingness to make the hard call of striking Trump from the ballot effectively nationwide. He might do it if Roberts is doing it, because he loves and trusts Roberts, or he might do it if he’s really sold on the arguments and isn’t too terrified of the political consequences… but, then again, he might not.
Alito is a Republican. When he’s right, he’s hella right, but, like Sotomayor, Alito virtually always reaches the legal conclusion you would expect based on his partisan alignment. Sometimes the conclusion is well-supported and clearly correct, sometimes not, but it’s always the conclusion you expect. So you might say that, even when Alito’s right, he’s right kind of by accident. Since Republicans foursquare oppose this suit, I don’t think his vote is attainable in this case.
In short? I don’t know how this case will turn out, but I think it’s in play. If I’m placing bets, I give Trump a 65% chance of winning, and the challengers a 35% chance.
Why so low? There are too many ways for challengers to lose. To win, they have to win on all three key questions before the court: self-execution, “officer of the United States,” and insurrection. Trump only has to win on one of them. That’s a tall order with three hard questions as contested as these—and I’ve already conceded elsewhere that the “officer” question is a close call.
Possible Final Outcomes
Depending on how quickly they move, the case could be done lightning-quick—say, by New Year’s Day—but that would be shocking, and the opinion would probably be a little slapdash. It could also drag on all the way until June, but that would also be shocking. My best guess is that this thing gets heard and decided on an expedited-but-still-careful basis, with oral arguments in the first or second week of January and a ruling by the end of January. I could be totally wrong.
Meanwhile, Colorado’s ballot printing deadline, I am reading, is January 5. That sounds right. Colorado’s presidential primary is the same day as Minnesota’s, and Colorado, like Minnesota, has early voting for (at least) military and overseas personnel. We saw in the Minnesota case that Minnesota’s printing deadline was… also January 5!
The case seems almost certain to drag on beyond January 5. That means Trump’s name will almost certainly appear on at least some Colorado primary ballots in the primary election on March 5. If Trump wins this case, that’s the right outcome and Trump’s votes are counted normally. If Trump loses this case, then his name will appear on at least some ballots, but (depending on how Colorado law works) his votes may be counted as spoiled ballots. (He will not appear on the Colorado general election ballot if he loses this case.)
As for other states:
If Trump wins the Supreme Court case on any but the narrowest and most technical grounds (like the “primary elections don’t count; come back for the general election” argument Minnesota tried to pull), then that will be the end of it. The Supreme Court will have determined that candidates who did what Trump did cannot be disqualified under Section Three. If any other state tries to disqualify Trump after that, Trump will quickly appeal back to the Supreme Court and the Supreme Court will instantly and summarily overturn the state court decision for being inconsistent with federal precedent. That won’t actually need to happen, because state courts will respect the Supreme Court’s ruling all by themselves. Nobody will try this again if Trump wins on the merits.
There will be other consequences if Trump wins. The Supreme Court may, in its ruling, have effectively neutered a provision of the United States Constitution. It will call other qualification clauses of the Constitution into question. (Mr. Barack Obama may wonder why he shouldn’t try running for a third term.) However, these are hard to predict, and depend on the content of the ruling. For immediate practical purposes, we can just say: if Trump wins, the 2024 election goes on as normal. Trump vs. Biden, Biden probably wins, the polls are a trap you fools.
On the other hand, if Trump loses, that will also be pretty close to the end of it, too. The Supreme Court’s decision against Trump will determine, nationwide, that a presidential candidate can be removed from the ballot for engaging in insurrection, and it will substantially define for us what exactly “insurrection” means.
Other states are not obligated to remove Trump from their ballots. Some states may literally not have laws in place to cause removal to happen. In those states, people might still vote for Trump, and Trump’s votes might still be counted, at least in the primary and conceivably even in the general election.
However, in most states, there will be a legal process to strike Trump from the ballot, and somebody (if not the other GOP candidates, then Joe Biden for sure) will eventually make use of that process to start a lawsuit against Trump. There could be more trials, in which the same evidence is gone over again by a different state court. Those courts will be bound by the Supreme Court’s findings of law, but not by the Colorado District Court’s findings of fact.
This leaves a narrow possibility that Trump could introduce different facts into the record that could give a pro-Trump state court an excuse (or even a sincere reason) to rule that Trump didn’t engage in insurrection and therefore isn’t disqualified. However, this would depend on the U.S. Supreme Court leaving enough ambiguity about what precisely counts as insurrection for state courts to maneuver around it. Even if they did, it seems likely that these states would be few and far between—not enough to elect Trump to the presidency, or even to the GOP nomination.
On the other hand, let’s suppose that Republican primary voters, in defiance of the Constitution, continue insisting that Trump is their man, and they win enough votes (and court cases) in enough states to secure Trump the nomination and later win enough states to give Trump the electoral college, and thus the presidency.
At that point, Trump’s election would be (correctly) challenged by the Joint Session to Count the Electors in 2025, and we would have J6 2.0, except with the Democrats challenging, and their challenge being correct instead of cynical. However, thanks to recent reforms in the Electoral Count Act, this challenge would probably fail.
So, technically, I guess, Trump could lose this case and still win the Presidency for a second time. However, for a wide range of reasons, I think the odds of this happening are remote.
See You Space Cowboy…
I hope that’s enough for De Civ readers to chew on over Christmas! I will be back December 27 or so! (Professor Koppelman, if you are reading this, I apologize for further delaying my reply to your email! I was planning to write back on the 27th!)
In the meantime, you can follow breaking developments the same way I do: through my Conlaw twitter list. This list is composed of important law professors (and a few others) from all sides of constitutional law—some exactly right, many woefully wrong about everything, but all of them basically civil and excited about their subject.
Conlaw (by @BCSWowbagger): https://twitter.com/i/lists/1538774472458702849
Honestly, these guys are a lot more fun to read and spend time with than the rest of Politics Twitter, or Audio Drama Twitter, or Young Adult Literature Twitter, or, worst of all (shudder) Catholic Twitter. I don’t know what it is, but the conlaw professors are just generally very friendly and civil with one another, even when subtly calling one another dinguses.
This list is a great source for instant reaction to breaking news in a case like this, and they link out to all kinds of interesting articles. So, if anything big happens between now and the 27th, check in with them!
I’ll see you after! Merry Christmas!
P.S. If people you know have questions about this case, maybe share this article with them?
Update 10:41 AM: In response to reader comments, I corrected a typo, an error (“2028”→ “2025”), clarified how the stay works, and clarified where Team Trump fumbled the ball on the evidentiary standard.
I’m 90% sure he’ll file cert rather than seeking what’s called an “extraordinary remedy,” because the Colorado Supreme Court graciously set a flexible deadline that obviates Trump’s need to seek an extraordinary remedy (like an emergency stay). Still, lots of rocket-docket cases like this one involve extraordinary remedies, and maybe I’m forgetting something.
There are lots of technical ways this isn’t quite accurate, but even lawyers mostly don’t care anymore.
I have a question about the self-executing aspect of this, that I haven't been able to find a clear answer for in your articles (if I have just overlooked it I apologize)... But even though section three is self-executing in that you don't need a Congressional cause of action to bring a disqualification suit against an insurrectionist, you still need a legal determination, in the form of a criminal conviction, that proves the actions that the person engaged in constitute an insurrection.
Is that not correct?
Thank you for the quick reaction to this breaking story, James.
Contrary to your view that SCOTUS will take cert, my guess is that they will find a reason not to take cert. I do not share your view that other states will automatically take that as a tacit approval.
But who knows? One thing about Trump is not only does he break all the rules, others around him do so as well.