Split Ticket

The Supreme Court is no stranger to high-stakes cases with significant electoral implications. Since the 1960s, justices have resolved disputes over redistricting, the Voting Rights Act, felon disenfranchisement, campaign finance regulations, and even congressional term limits. That list is by no means exhaustive, but it highlights the fine line between law and politics in voting and elections cases. 

Bush v. Gore is perhaps the best example of how that boundary can sometimes blur. The infamous dispute over the outcome of the 2000 Presidential Election arose from uncertainty about whether Republican George W. Bush or Democrat Al Gore won Florida’s 25 electoral votes. Bush’s narrow lead on election night shrank to just 317 votes after an automatic machine recount. Gore eventually brought suit against Secretary of State Katherine Harris for certifying Bush’s victory while recounts were still underway in four counties. Soon after, the Florida Supreme Court ruled in Gore’s favor and ordered all ballots with “hanging chads” to be recounted.

The case then made its way to the Supreme Court, where Bush ultimately prevailed. While seven justices agreed that the “standardless” recount ordered by the Florida Supreme Court violated the Equal Protection Clause of the Fourteenth Amendment, only five held that there wasn’t enough time before the safe-harbor deadline for the state to implement a constitutional recount. Without a remedy on remand, Gore declined to pursue the case further and conceded the presidency to Bush.

The Court’s ruling attracted much criticism, particularly from Gore supporters. Data from the National Annenberg Election Survey show predictable partisan division on the question of whether the Court had acted fairly in finding the recount unconstitutional, with 85% of Republicans responding in the affirmative compared to just 27% of Democrats. 

While exit poll respondents were evenly divided between Bush and Gore, 54% of the NAES sample thought that the Court decided the case fairly. Still, the Court’s public image as an apolitical institution took a hit. Additional survey results gathered in the aftermath of the ruling showed that, among respondents who viewed the case as unfairly decided, 76% thought that political concerns had motivated the justices’ decision.

Had the Court found Florida’s recount in four heavily Democratic counties constitutional, evidence suggests that Bush still would have prevailed. However, a uniform statewide recount complying with the per curiam opinion might have resulted in a Gore victory. Because four justices at the time thought that Florida could have conducted such a recount before the convening of the Electoral College members, the argument persists that the Court’s fateful decision may have decided the 2000 presidential election.

Now, twenty-four years after Bush v. Gore, the Supreme Court is set to decide Trump v. Anderson — a case with similar implications for the 2024 presidential race. The Court heard oral arguments in the case on February 8th, but unlike in Bush v. Gore, the justices mostly seem to be on the same page. The consensus is that they will rule in favor of Trump. Only Justice Sonia Sotomayor appeared truly receptive to Colorado’s case for disqualification at oral argument, but even she might end up joining a unanimous opinion.

Background

So how did we get here and why did the Court seem to reject Colorado’s arguments? To understand that, we have to review the origins of the case. The dispute started on January 6th, 2021, when a group of rioters stormed the Capitol building following a rally during which Trump had repeatedly called the results of the 2020 election into question. 

Two years later, retired Republican State Senator Norma Anderson and other eligible GOP primary voters brought suit against Colorado Secretary of State Jena Griswold arguing that Section 3 of the Fourteenth Amendment disqualifies Trump from public office and that failure to remove him from the ballot would be a “wrongful act” in violation of Colorado’s Election Code. Trump proceeded to intervene in the dispute.

After a failed attempt by the former president to remove the suit to federal court, the Denver District Court conducted a trial and found by clear and convincing evidence that Trump had engaged in insurrection. Despite that finding, the court determined that candidate Trump could not be disqualified under Section 3 because the presidency is not an “office under the United States” as that language is used in the Amendment.

Trump appealed to the Colorado Supreme Court, which affirmed the district court’s finding as to insurrection but rejected its understanding of the Fourteenth Amendment. The majority of justices adopted Anderson’s argument about Section 3 and determined that it would violate Colorado’s Election Code for Secretary Griswold to keep a disqualified candidate on the ballot. The Colorado Supreme Court stayed (froze) its ruling until January 4th, allowing Trump to petition for his case to be heard by the U.S. Supreme Court. Since the Court decided to grant cert, the lower court’s ruling will remain on pause while the justices decide the case.

Arguments

At oral argument, Trump’s lawyer Jonathan Mitchell focused on the point that states cannot remove the former president from the ballot as a means of effectuating Section 3 since Congress could by a 2/3rds vote remove the disability that would otherwise disqualify Trump from holding office. Jason Murray, representing Anderson, reiterated that Colorado properly interpreted Section 3 to ensure compliance with the state’s election code. He referenced states’ broad power under the Electors Clause to strengthen his conclusions. 

But the justices did not seem to buy Murray’s arguments, with Chief Justice Roberts worried that affirming the Colorado Supreme Court could lead to frivolous disqualification suits rooted in purely partisan motives. Justice Elena Kagan, one of the liberal justices, expressed similar doubts about effectively letting individual states decide a national election. All told, it seems clear that the justices don’t believe that Section 3 is self-executing; if anyone can enforce it, it must be Congress and not the states.

Expectations

The post-argument consensus appears clear: the justices will almost certainly reverse the Colorado Supreme Court and rule in favor of former President Trump. Realistically, the biggest remaining questions are what the final vote will be and how the Court will structure its opinion. 

As to the first question, I would put my money on an 8-1 vote, but there is certainly a possibility that Justice Sotomayor’s colleagues could convince her to join a carefully worded unanimous opinion. Even if the Court doesn’t end up being unanimous, unanimity is almost certainly more likely than a potential 7-2 split. If there were to be more than one dissenter, it would be indicative of significant behind-the-scenes changes since oral argument.

Regarding the second question, the discourse from the argument suggests that the Court will decide the case narrowly on the ground that individual states do not have the power to disqualify presidential candidates under Section 3. Because the opinion in this case will likely be near-unanimous and of limited scope, I would expect the Court to decide the case somewhat quickly. In fact, there’s a chance that the justices will hand down an opinion on Wednesday.

Whenever the opinion comes out, there won’t be significant electoral implications if the Court does reverse the Colorado Supreme Court. Besides the fact that Trump has all but secured the GOP nomination, only two states (Colorado and Maine) have reasoned that he is disqualified from seeking the presidency under Section 3. Even in those states, both rulings have been stayed pending resolution of Trump v. Anderson, meaning Trump will be on the ballot for both primaries regardless.

While this case likely won’t be as consequential as Bush v. Gore, public opinion is still worth examining. A January ABC News/Ipsos poll found that Americans supported ballot removal decisions in Colorado and Maine by a slim 49-46%. Although the poll did not ask directly about how respondents would react to the Court’s potential ruling in the case, it showed great polarization over the underlying issue. 

Notably, 53% of respondents thought that the justices would decide the case “based on the law” compared to 43% who expected personal political views to be the motivating factor. That’s a much more generous spread than the 47-47% tie among respondents asked about the role of personal political beliefs in deciding Bush v. Gore.

Finally, the survey asked respondents how they thought the justices should decide the case. For obvious reasons, the answer choices are more reflective of public opinion than legal realities. 39% thought that the Court should unequivocally hold that Trump should remain on the ballot in all fifty states; 30% responded that the they should do the opposite and declare Trump disqualified and removable from the ballot nationwide; and 25% thought that the decision about qualification and removability should be left up to the individual states.

With at least two of the Court’s liberals seemingly prepared to join an opinion reversing the Colorado Supreme Court, it seems safe to say that personal opinions about Trump aren’t a motivating factor for some of the justices. Despite the polarization on the issue of disqualification, the Court’s decision in this case probably won’t have as significant an impact on its public image as other recent, more controversial decisions.