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Trump to stay on ballots – SCOTUS

The Supreme Court ruled 9-0 that no State may keep Donald Trump off the ballot on Amendment XIV grounds, but disagreed on why.

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The Supreme Court has acted in the Colorado ballot access case involving Donald J. Trump. This morning at 10:00 a.m. EST the Court reversed the Colorado Supreme Court’s order to keep Trump off the ballot. In so reversing, five of the Justices set forth a clear rule that Congress must pass any enforcement legislation if Amendment XIV Section 3 is to have the force and effect the Colorado Supreme Court thought it had. As one might expect, the Liberal Bloc objected to that – but not enough to dissent from the reversal.

An opinion-issuance day

The Court signaled its possible intention by declaring, early yesterday afternoon (March 3), that it would issue an opinion. Such “opinion issuance days,” in which the Court would release an opinion or opinions without formally taking the bench, were very common during the “COVID era.” They have been unknown since the lifting of most quarantines. Instead, the Court schedules a “non-argument day” in which it issues the opinion.

But the Court is in an apparent spring recess until the week of March 18. Yet they marked their electronic calendar with a day to issue orders, and to release an opinion. This, according to Christina Laila of The Gateway Pundit, was on very short notice.

The Colorado Supreme Court ordered the Colorado Secretary of State not to put Trump’s name on any primary ballot. But they carefully stayed their ruling until the ballot deadline, which was January 4. Furthermore, the stay would self-extend automatically if Trump sought U.S. Supreme Court review. He did, and the Court held oral argument on February 8.

The nine Justices offered no solace to the respondents at oral argument. So as expected, the Court unanimously reversed the Colorado Supreme Court. The unusually terse twenty-page opinion is available here. It comes just in time for Super Tuesday – and Colorado is a Super Tuesday State.


Trump wins – and the win goes further

Again, recall the wording of Amendment XIV, Section 3:

No person 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, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

But recall also the wording of Section 5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The Supreme Court found that last section critical. Only Congress may enforce the provision of Section 3 as to federal offices. Congress did so enforce, in the Enforcement Act of 1870. A State may pass its own statutes to exclude “insurrectionists” and “rebels” from holding State offices. But a State may not presume to enforce that section on candidates for President or Vice-President, or Presidential Electors, or Senators or Representatives in Congress.

And yes, just as Jon Mitchell, attorney for Trump, argued, the decision in U.S. Term Limits, Inc. v. Thornton governs.

States cannot impose additional restrictions, such as term limits, on its representatives in the federal government beyond those provided by the Constitution.

Perhaps the overriding principle is that Amendment XIV changed the balance of power in favor of the federal government. That this same Amendment would grant to any State an enforcement power over the election of a President, strains credulity. So Chief Justice John Roberts suggested, and so this opinion ringingly reads.


The Enforcement Act of 1870 works by letting United States Attorneys sue to remove nonlegislative “insurrectionist/rebellious” officeholders from office. It provides no enforcement mechanism against a President. Therefore (though the Court did not say this) the proper sanction against an “insurrectionist/rebellious” President is impeachment. The grounds would be even simpler: treason.

Finally the Court held that the inevitable differences in qualification standards among the States – with different laws on the books – would produce a “patchwork” of different standards for the validity of votes cast. That, the Court would not tolerate.

Majority and concurring opinions

In summary, a clear majority – consisting of Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Thomas – have absolutely forbidden any State to keep Donald Trump, or any other candidate, off the ballot on this ground. These five issued a per curiam opinion – one without signatures.

So the recent decision by a judge in Cook County, Illinois – overriding the State election board – cannot stand, either. Nor can a similar decision in Maine. Perhaps the Court sought to draft a decision that says, in no uncertain terms, “Don’t waste our time.” Such decisions – more common than people think – often produce very terse subsequent decisions called Grant, Vacate and Remand orders. One can probably anticipate that such orders will be swiftly forthcoming in the Illinois and Maine cases.

Amy Coney Barrett seemed to feel, in her two-paragraph concurrence, that the majority had delivered their judgment with an unseemly stridor. The Liberal Bloc (Jackson, Kagan, and Sotomayor) seemed to want to leave a way open for ballot-access challenges less “messy” than the Colorado case. In this they make a serious logical inconsistency. They state:


All the Reconstruction Amendments (including the due process and equal protection guarantees and prohibition of slavery) “are self-executing,” meaning that they do not depend on legislation.

That might apply to Amendment XIII. But Amendments XIV and XV both have “Congress shall have the power to enforce” sections. Why have them, if those Amendments are self-executing?

Reaction from Trump and others

Indeed they leave open the question of exactly why they concurred in the final judgment. They indicated their concurrence, but only because Colorado relied on no uniform procedure and therefore “winged it.” But who do they expect to draft that uniform procedure? The Liberal Bloc didn’t say. So by virtue of what standard do they propose to uphold future Trump ballot access challenges? Again, they won’t say.

Julie Kelly, a frequent defender of Trump, highlighted the last page of the per curiam opinion and the unanimous judgment.

President Trump had an even simpler reaction:


Trump also appeared on Howie Carr’s radio program to offer more detailed reaction:

Rep. Mike Johnson (R-La.), Speaker of the House, offered this:

Sen. Marsha Blackburn (R-Tenn.) reacted slightly more strongly:

As did Sen. John Hawley (R-Mo.):

And Sen. J. D. Vance (R-Ohio):


Trump appeared ready to concentrate on Super Tuesday – and today’s North Dakota primary.

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Terry A. Hurlbut has been a student of politics, philosophy, and science for more than 35 years. He is a graduate of Yale College and has served as a physician-level laboratory administrator in a 250-bed community hospital. He also is a serious student of the Bible, is conversant in its two primary original languages, and has followed the creation-science movement closely since 1993.

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