Will the Supreme Court Keep Trump off the Ballot? – WSJ

As a political matter, banning Mr. Trump from the ballot is shortsighted and deeply troubling. It disenfranchises his supporters in a race that polls show him leading. It advances the rigged-system and self-grievance narratives that are catnip to his base. And it s hypocritical insofar as it undermines democratic norms to take down someone regularly accused by opponents of undermining democratic norms. Republican backlash is inevitable.

As a legal matter, however, Mr. Trump s situation is more complicated. The U.S. Supreme Court has agreed to hear an appeal to last month s 4-3 decision by the Colorado Supreme Court to exclude the former president from the state s primary ballot on grounds that he engaged in insurrection on Jan. 6, 2021. Trump supporters believe that the high court s conservative majority makes the case a slam-dunk in Mr. Trump s favor. It s likely that the justices will overturn the Colorado Supreme Court, but how they reach that decision is as important as what they decide.

That s because the U.S. electoral system is decentralized in the extreme. Our national elections are structured on a state-by-state basis, and election laws vary. When it comes to absentee ballots, voter registration, felon disenfranchisement, same-day voting and myriad other issues, procedures vary from one state to another. Ballot access is no different, and the Supreme Court historically has tended to allow states to make their own rules.

Akhil Reed Amar, a Yale law professor and constitutional scholar, remarked in a recent podcast discussion that the court might opt for a minimalist ruling that defers to Colorado but doesn t bind other states. It could decide that Mr. Trump was permitted to make his case for ballot access and lost, thus upholding the Colorado Supreme Court decision while still allowing other states with different ballot-access qualifications to go their own way.

What the court shouldn t dodge, however, is its duty to provide some guidance on Section 3 of the 14th Amendment, a Civil War-era provision that bars from holding public office someone who has sworn an oath to defend the Constitution and then engaged in insurrection or rebellion. Colorado and Maine relied on the clause to exclude Mr. Trump from the ballot, but there s wide disagreement over what it means and how it should be applied.

via www.wsj.com

Jason Riley.