Supreme Court Could ‘Duck’ Decision on Donald Trump Ballot Eligibility

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The United States Supreme Court could avoid directly deciding whether former President Donald Trump is eligible to remain on Colorado’s presidential ballot, according to former U.S. attorney Joyce Vance.

The high court will hear arguments on Thursday in a historic case that could imperil Trump’s bid to reclaim the White House in November.

For the first time, the justices will consider Section 3 of the 14th Amendment, which bars from office anyone who once took an oath to uphold the U.S. Constitution but then engaged in “insurrection.”

Colorado’s Supreme Court determined that Trump incited the January 6, 2021, riot at the U.S. Capitol and, therefore, should not appear on the ballot for the state’s primary on March 5. Trump’s lawyers have argued that Trump did not engage in insurrection, as well as that the presidency is not covered by the amendment. Trump has denied all wrongdoing.

Efforts to disqualify Trump “threaten to disenfranchise tens of millions of Americans” and “promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots,” Trump’s lawyers wrote in a brief.

A ruling in Trump’s favor would likely end efforts in Colorado, Maine and other states to prevent Trump from appearing on the ballot. But if the justices side with Colorado, it would mean they are effectively saying Trump did engage in insurrection and is barred from holding office again under the 14th Amendment, allowing Colorado and other states to keep him off the ballot and endanger his 2024 campaign.

Vance said on social media that most commentators believe it is unlikely that the Supreme Court, which has a 6-3 conservative majority and includes three justices appointed by Trump, will approve Colorado’s decision “despite the letter of the law” because “it feels undemocratic.”

“That’s an odd view for a Court full of textualists to take, but there are some off ramps that would let them duck deciding the question head on,” Vance wrote on X, formerly Twitter.

Newsweek reached out to Vance for further comment via email.

Vance also noted that the Colorado Supreme Court affirmed a ruling from a district court judge who found Trump incited an insurrection but “reversed her decision” that presidents were not covered by the constitutional provision.

“SCOTUS is considering whether they erred in any way, so all arguments are on the table,” she wrote.

Donald Trump at a campaign event in Las Vegas, Nevada, on January 27, 2024. The Supreme Court will weigh whether Trump can remain on the Colorado ballot.

David Becker/Getty Images

She said that one argument that Trump is making is “that even if he’s an insurrectionist he’s barred from holding office, not running for it.” That puts one of Trump’s appointees to the court, Justice Neil Gorsuch, in the spotlight, Vance wrote, because he wrote an opinion as a circuit judge upholding the ability of states to keep ineligible candidates off their ballot.

In a post on her Civil Discourse Substack blog on Sunday, Vance said she remains convinced that the justices will “look for a procedural way out” of removing Trump from ballots across the country.

“The court’s job is to determine the outcome based on the law,” she wrote, repeating her comments from a December post.

“Whether they will stay in that lane is anyone’s guess right now. Based strictly on the language of the 14th Amendment, Trump looks ineligible.”

But, she wrote, some of the justices “may believe it would be better for the country to allow voters to reject Trump at the polls because ‘that’s how a democracy is supposed to work.’ It seems likely to me that they’ll look for a procedural way out of removing him from ballots across the country.”