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National Review
National Review
5 Jan 2024
Dan McLaughlin


NextImg:The Corner: What You Need to Know Now about the Supreme Court Taking Up Trump’s Ballot Qualification

The Supreme Court this afternoon agreed to hear Donald Trump’s challenge to the Colorado supreme court decision disqualifying him from the primary ballot. The Court’s order in Trump v. Anderson (No. 23-719) sets the schedule. Here’s what you need to know right now:

  1. There were no dissents. We don’t know how many of the justices voted to take this case — at least four — but nobody objected strongly enough to the Court’s wading into this mess to take their quarrel public.
  2. The Court took up Trump’s petition, but not the Colorado Republican Party’s petition, which at least for now is still pending. It is possible, but not that likely, that the Court would add the second case to its docket; more likely it will defer action on the Colorado GOP petition until it has ruled on Trump’s appeal. As I have previously explained, Trump raised a broader challenge encompassing the main questions in the case, with the exception of the Colorado GOP’s argument that it has a First Amendment freedom of association to nominate a candidate who is ineligible to hold the office (an issue raised in an amicus filing today in Trump’s case by the national Republican Party). Trump also has much more obviously uncontested legal standing to ask a federal court to decide whether he is disqualified from the ballot. All of which means that the Court can now make its own choices: to disqualify Trump, to rule that he didn’t engage in insurrection, to decide that he’s not disqualified because Section 3 of the 14th Amendment doesn’t cover presidents, to conclude that Section 3 is effectively a dead letter (or one that requires a criminal conviction before it is enforced), to rule that the question isn’t one for the courts, or to find that it was somehow either premature or a due-process violation for the Colorado courts to settle this question now. That’s a lot of work for the Court, and it will probably crowd out much of its attention to anything else over the next five weeks. One hopes that it produces a majority opinion less compromised by speed and compromises than in Bush v. Gore.
  3. In terms of timing, the Court asked for briefs beginning January 18 and concluding February 5, with argument set for February 8. That means a couple of things. First, the Court will blow through the deadline (which was today) for Colorado to print ballots. Second, it seems likely that the Court will try to issue a swift ruling before the February 12 date when Colorado voters can begin voting in the primary. Third, as far as the Republican primary calendar is concerned, the Iowa caucuses will be held on January 15 before the first briefs are even filed, and New Hampshire (January 23) and Nevada (February 8) will have to vote before the Court rules. However, if the Court settles definitively between February 8 and 12 Trump’s legal eligibility to serve another term or at least appear on the general-election ballot, that will be known before the February 24 South Carolina primary, let alone Super Tuesday on March 5.