Legal experts increasingly believe that the U.S. Supreme Court will eventually decide the question of whether former President Donald Trump can be removed from various ballots ahead of this year’s election if those states deem him to be guilty of having participated in an “insurrection” on January 6, 2021.
Trump has not been charged with that crime, much less convicted of it, but so far, two states—Colorado and Maine—have removed him for it under a provision of the 14th Amendment, which was passed in the immediate aftermath of the Civil War. Two more states, Michigan and Minnesota, have ruled against efforts to remove Trump, as did California’s secretary of state last week, Newsmax noted.
The New York Times, meanwhile, reported that Trump’s legal team is preparing to file challenges to the rulings in Colorado and Maine, and legal experts predict that the Supreme Court will eventually take the challenges and decide Trump’s eligibility.
There are differences of opinion between experts, however.
“The Colorado case definitely increased the likelihood that the U.S. Supreme Court will intervene,” Doug Spencer, a law professor at the University of Colorado, told the Washington Examiner.
“It’s true that the Supreme Court often takes up cases when there is a divide among the federal circuits. But the same is not true when there is a divide among state Supreme Courts. That is especially true when, as is the case here, the cases are decided on state law grounds,” he added.
But other experts believe the nation’s highest court will have to decide the issue.
Professor Ray Brescia of Albany Law School told the Examiner that ultimately, the Supreme Court would have to decide this. He noted further that his thinking is in part due to the “different procedural postures” states presented with efforts to remove Trump from their respective ballots have taken.
Leftist-aligned groups and anti-Trump voters have joined forces and have filed legal actions in 30 states to remove Trump, but more than half of them have already been decided in his favor and dismissed, according to The Guardian.
The outlet added that lawsuits remain active in 14 states: Alaska, Arizona, Nevada, New Jersey, New Mexico, New York, Oregon, South Carolina, Texas, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming.
One reason the U.S. Supreme Court’s intervention seems inevitable is the differing legal viewpoints about whether Trump is required to be found guilty of the crime of “insurrection” before he can be deemed constitutionally ineligible for having “engaged” in one.
Brescia told the Examiner that Trump’s challengers have a higher burden than the former president when it comes to the ballot fight.
“It is much harder for the people who want to keep the former president off the ballot to win before the Supreme Court than it is for people who want him to stay on it,” Brescia said. “I think this is a triple bank shot where you’re sort of trying to jump the cue ball onto a neighboring table,” he added, using a billiards analogy.
Other legal experts agree that the nation’s highest court will have to decide, including CNN legal analyst Ellie Honig, a former assistant U.S. attorney.
“The 14th Amendment Section 3 says, in plain text, that if you shall have engaged in insurrection, you can’t be in office. She takes that to mean that if she determines that Donald Trump engaged in insurrection, he can’t be on the Maine primary ballot. Is it that simple?” CNN anchor John Berman said during a show segment last week after Maine Secretary of State Shenna Bellows decided to remove Trump.
“No, it’s not that simple. So, clearly, Section 3 of the 14th Amendment says engage in insurrection, you’re out. We all have that. The complicated part and where we are going to see this play out in the courts is who gets to decide and by what process,” Honig responded.