Former President Donald Trump’s lawyers do not have a track record of crafting sophisticated legal arguments in his defense. Their strategy has often focused more on creating opportunities for his political diatribes than producing winning moments in court. The latest filing from his team before the Supreme Court, though, is a wonder in terms of throwing literally anything at the wall and hoping it will stick.
Trump is asking the justices to overturn the recent decision of the Colorado Supreme Court to remove him from the primary ballot. In a 4-3 ruling, the court determined that he is disqualified from running for president under Section 3 of the 14th Amendment. That clause mandates that nobody who swore an oath to support the Constitution and then engaged in insurrection “shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State.”
My colleague Jordan Rubin and I have already covered many of the reasons that Trump’s petition lists for the Supreme Court to take up the case. But one argument in the filing stands out, both for its novelty and its audacity. “Section 3 of the Fourteenth Amendment prohibits individuals only from holding office,” the petition reads. “It does not prevent anyone from running for office, or from being elected to office, because Congress can remove a section 3 disqualification at any time—and Congress can remove that disability after a candidate is elected but before his term begins.”
You read that correctly — and it doesn’t stop there, confidently rolling with the least effective of hair splitting. “Forcing President Trump to prove that he is not disqualified before appearing on the ballot effectively adds a new, extra-constitutional requirement to running for office,” it continues. “It requires that a president be ‘qualified’ under section 3 not only on the dates that he holds office, but also on the dates of the primary and general elections — and on whatever date a court renders judgment on his eligibility for the ballot.”
To put this argument in a real filing with the Supreme Court is, in layman’s terms, absolutely bonkers. Trump’s lawyers are saying that there is no time that would be appropriate to have a potential presidential candidate removed from a ballot, whether they’re qualified or not. Under this logic, former President Barack Obama could — or even should — rightly be placed on a Democratic primary ballot as the 22nd Amendment’s term limits could not be properly judged ahead of voters making their decision.
But in contrast to the claim that not doing so disenfranchises voters of their right to select a candidate, leaving a disqualified candidate on the ballot is a much graver offense to democracy. It in effect would nullify their choice at a time where there can be no recourse, unlike a decision issued before Election Day when their vote may still go to an alternate selection.
It’s also an argument that places the final determination of a candidate’s qualifications on Congress. Section 3 of the 14th Amendment does state that Congress can remove its effects with two-thirds of the vote of both the House and Senate. A state judge in Michigan earlier this year issued a ruling that left Trump on the GOP primary ballot but also determined that his qualification may be a “political question” that only Congress, not the courts, could decide.
I’ve previously gone into detail about what that would look like and the importance that control of Congress would hold in the aftermath of the 2024 election. It would require only a majority of each chamber to challenge any electoral votes that Trump won due to his ineligibility. But the two-thirds bar to remove that ineligibility is high enough bar that even a wave of GOP victories in November would likely fall short of such large majorities.
But despite the legal flimsiness of the claim, it may be politically astute. It is a similar gamble to the one Trump’s post-2020 schemes hinged on: that legislators wouldn’t dare to anger the millions of people who had cast their ballots for Trump and agree to support his bid to stay in office — or in this case, return to power. If we do somehow reach a point where Congress is the ultimate arbiter of Trump’s fate, with Republican majorities in both houses, how many Democrats would dare vote against any attempt to install him? Enough to prevent him from hitting that threshold?
Ideally, it’s a question that would remain rhetorical. The Colorado voters who initially filed the suit against Trump and the Colorado Republican Party, which has submitted its own petition for appeal to the Supreme Court, both have asked the justices to issue a ruling ahead of Super Tuesday in March. It’s unclear whether that will happen, and even harder to know just how this very conservative court will rule. But of all the potential routes they have to take to return Trump to the ballot — not just in Colorado but in Maine and other states that might disqualify him, this “running is different than holding” shtick feels unlikely to garner much support.
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