Much unease in blue states as Supreme Court weighs the Trump ballot case
By Karin Brulliard, Ari Schneider and Joanna Slater
February 9, 2024 at 6:00 a.m. EST
BOULDER, Colo. — Professor Douglas Spencer began his Thursday afternoon class at the University of Colorado Law School by reading a text message he had just received from his 13-year-old daughter.
Only a few hours earlier, the U.S. Supreme Court had heard oral arguments in the case that will decide whether Donald Trump is eligible to appear on the Colorado ballot in November. One of the critical legal questions is whether Section 3 of the 14th Amendment bars someone who previously took an oath to support the Constitution as “an officer of the United States” from returning to office if they engaged in insurrection.
The message from Spencer’s daughter asked whether he thought Trump had been an officer or a holder of office. Yes, he texted back. “That’s what I thought,” she replied. “I don’t understand law that much, but even I was like, bruh.”
His 70 students — five rows of them sitting shoulder to shoulder — burst out laughing. It was a rare moment of levity for a discussion of complexity and immense import.
Until this year, Spencer had never taught Section 3. But it is now a centerpiece of his election law syllabus as the high court weighs the case that will shape the race for president, either by allowing Trump to remain on state ballots or by derailing his candidacy months before the vote.
In a divided nation, the profound implications of the justices’ pending ruling have sparked debate and qualms among election scholars, legal experts, activists and students of all political shades. But nowhere may the tensions be deeper than in blue states and jurisdictions that have firmly rejected Trump in past votes but now wrestle with whether democracy is better served by punishing him for his efforts to overturn the 2020 election results or letting voters decide his fate this fall.
The disagreement has been mirrored in decisions by courts and election officials in some of those blue states. Colorado’s Supreme Court and Maine’s secretary of state disqualified Trump, while the Minnesota Supreme Court and California Secretary of State Shirley Weber did not.
“We didn’t have the authority to just go in and take somebody off the ballot. You can’t sit around and talk about somebody else who was cavalier with the law and then become cavalier yourself,” Weber, a Democrat, said in an interview.
Unease over the novel question — whether a Reconstruction-era provision barring those who have “engaged in insurrection” from holding office applies to Trump — was reflected at the U.S. Supreme Court on Thursday, as both liberal and conservative justices seemed highly dubious while questioning attorneys for the state of Colorado and the Republican and independent voters who brought the case there.
“Why should a single state have the ability to make this determination [of who gets to be president] not only for their own citizens but for the rest of the nation?” asked Justice Elena Kagan.
The issues involved have drawn even more scrutiny of election rules, which in recent years have faced an onslaught of challenges and changes.
That “endless battle over the rules of the game” worries Charles Stewart, a political scientist at the Massachusetts Institute of Technology. He has feared that the unprecedented step of barring Trump from office would ignite violence and lead to Republican reprisals against Democratic candidates, setting off “a death spiral of electoral politics at the national level.”
Yet the court on Thursday seemed to foreclose such a bleak scenario. Stewart listened to the two hours of arguments and was struck by the justices’ near-uniform skepticism. On a scale of one to 10, he said, they were at 11.
“This is Spinal Tap level,” he said. “They’re clearly very, very skeptical.”
Shanique Rodriguez, who works to improve voter turnout as executive director of the Massachusetts Voter Table, views the intense focus on the 14th Amendment as a real-time civics lesson and the legal tussles over Trump’s candidacy as a healthy sign of engagement with democracy.
At the same time, she said, she is concerned that efforts to remove him from ballots only deepen doubts about the reliability of elections — doubts Trump has fueled since his loss in 2020. Talk of barring a candidate from the nation’s highest office, Rodriguez said, “creates this feeling of, ‘Can I even trust the system?’”
In places like Harris County, Tex., the huge, politically blue jurisdiction that includes Houston, some officials say the damage already has been done.
Christian Menefee, a Democrat elected as the county’s top attorney, has fought state attempts to interfere with how it runs elections. He doesn’tdoubt that Lt. Gov. Dan Patrick, a Republican, would follow through on his threat to try to remove President Biden from the Texas ballot if the Supreme Court sides with the Colorado plaintiffs. And he doesn’t expect that a ruling against Trump — even by a conservative-majority court — would sway the former president’s deep-red base.
“Dan Patrick and the people who follow that form of MAGA extremism don’t care about judicial philosophy, legal precedent, or rule of law,” Menefee said.
Even so, he said he believes the Constitution unequivocally bars Trump from running. “Ruling an insurrectionist ineligible is not disenfranchising voters,” he said. “It’s doing exactly what the 14th Amendment requires.”
The widely divergent views have been a boon to constitution- and election-law scholars, delivering an urgent, real-world teachable moment on a single sentence that until recently merited only a quick mention or none at all.
“There’s almost no way [the justices] can rule on it that won’t have significant consequences, one way or the other,” said Scott Bloomberg, a University of Maine law professor.
Bloomberg normally spends the second half of his constitutional law class focused on the 14th Amendment — particularly its first section, which granted citizenship to formerly enslaved people and enacted revolutionary due-process and equal rights protections. For years, the third section was more of a historical oddity.
That changed two years ago at students’ request. Bloomberg brought in a guest speaker, attorney Ron Fein, who was involved in pathbreaking, though unsuccessful, attempts to remove U.S. Reps. Marjorie Taylor Greene (R-Ga.) and Madison Cawthorn (R-N.C.) from each state’s 2022 ballot under the 14th Amendment. (The provision was used successfullythat same year to pull a New Mexico county commissioner from the ballot for his role in the Jan. 6, 2021, attack on the U.S. Capitol.)
This spring, the professor will walk his students through the questions at the heart of the Colorado case. Arguments against applying the 14th Amendment are “rooted in squeamishness” about the politics of disqualifying Trump and worries about undermining the democratic process, Bloomberg said. He disagrees.
“It’s anti-democratic in the same way that we don’t allow 34-year-olds to be president and I can’t vote for Barack Obama for a third term,” he said. “It’s a rule about eligibility.”
In Boulder, Spencer’s election-law class spent nearly 90 minutes Thursday parsing the amendment’s crucial wording.
Section 3, which he describes as “not arcane, but just old,” was the first topic he brought up when this semester began in January. He had assigned background reading, and he spent the initial class discussing a Colorado trial court’s finding that Trump had engaged in insurrection, the various elements of the constitutional provision — whether an 1868 dictionary might provide a relevant definition of “insurrection,” for example — and the legal strategies of the briefs in the case before the Supreme Court.
Second-year student Django Bonderman and third-year student Jenn Chalifoux-Gene were both surprised on Thursday that the justices hardly touched on the question of whether Trump engaged in insurrection. “That makes me think they already knew how they wanted to rule on it and are now just figuring out exactly how they’ll get there,” Bonderman said.
Chalifoux-Gene isn’t sure which outcome is right as far as the law is concerned, but she isn’t satisfied with how the high court approached the case’s broader issues.
“At what point does an ineligible candidate get kicked off the ballot?” she said. “Does it ever happen? Is the constitutional provision superfluous? I don’t feel confident that the outcome we get will actually answer those questions.”
Slater reported from Williamstown, Mass. Reis Thebault in Los Angeles, Molly Hennessy-Fiske in Houston and Danielle Paquette in Washington contributed to this report