Supreme Court rules for Trump in ballot case — but experts say it opens door to "crisis" if he wins

Former US President and 2024 Republican presidential hopeful Donald Trump leaves after speaking during a campaign rally at the University of New Hampshire’s Whittemore Center Arena in Durham, New Hampshire, on December 16, 2023. (JOSEPH PREZIOSO/AFP via Getty Images)

The Supreme Court on Monday restored former President Donald Trump to the Colorado primary ballot in a unanimous ruling, according to the Associated Press.

The court’s majority ruled that only Congress can enforce the Constitution’s ban on insurrectionists serving in federal office.

“[The] responsibility for enforcing Section 3 against federal officeholders and candidates rests with Congress and not the States,” the court’s majority opinion said. “We conclude that States may disqualify persons holding or attempting to hold state office.”

Though the court ruled 9-0 that Colorado cannot remove Trump from the ballot, only five of the justices held that the only way to enforce Section 3 of the 14th Amendment is through Congressional action, court expert Steve Vladeck explained, while four of the justices would have stopped at barring a state from disqualifying a presidential candidate.

Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson effectively argued that “the Colorado decision would create a patchwork pattern of different decisions in different states,” former U.S. Attorney Harry Litman explained. “Not necessary or wise to prescribe how provision should be enforced in the future through federal legislation.”

The ruling puts an end to efforts to remove Trump from the ballot in the state as well as similar efforts in Illinois and Maine.

The case marked the first time the Supreme Court addressed the 14th Amendment’s insurrectionist ban. Colorado’s Supreme Court ruled that the provision could be applied to Trump given his actions on January 6, 2021.

Some legal experts questioned the court’s logic.

“How can states have different rules for ballot access when it comes to the presidency?” wondered Georgia State Law Prof. Anthony Michael Kreis. “Why can Georgia keep some third parties off the ballot that are allowed in other states, for example?”

Some legal experts believe that the Supreme Court’s reasoning could “leave the door open to a renewed fight over trying to use the provision to disqualify Trump in the event he wins the election. In one scenario, a Democratic-controlled Congress could try to reject certifying Trump’s election on Jan. 6, 2025, under the clause,” according to the AP, which noted the issue could then return to court amid a potential full-blown constitutional crisis.

“Yes the Supreme Court ruled for Trump based on only Congress having the power to enforce the 14th amendment,” tweeted CNN legal analyst Norm Eisen. “But just as important as what they did is what they didn’t do. They did NOT expressly challenge that he was an insurrectionist—& the concurrence emphasizes that finding.”

Igor Derysh is Salon’s managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.