It has been almost a quarter of a century since the US Supreme Court in effect decided the 2000 presidential election in Bush vs Gore, calling off a recount of votes in Florida in a move that ultimately cemented the win for George W Bush.
Now the country’s highest court is preparing to wade directly into another election as it decides whether former president Donald Trump can be booted from the primary ballot in the state of Colorado. The outcome of that case, scheduled for oral arguments on Thursday, will have consequences beyond the 2024 ballot — it has sparked an existential debate about US democracy and thrust the Supreme Court back into another political firestorm.
“It’s equal parts what [the justices] do and what they say . . . both will have an enormous consequence,” said Gerard Magliocca, professor at the Indiana University School of Law who appeared as an expert witness for Colorado in earlier proceedings.
The case stems from a challenge brought last year by a group of Colorado voters who claimed Trump had engaged in insurrection on January 6 2021, when a group of his supporters stormed the US Capitol in an attempt to stop the certification of Joe Biden’s victory in presidential polls. It was one of a number of cases pursued by activist groups in state courts across the US, in an effort to get the ex-president, the Republican frontrunner, deemed ineligible to run for office.
Many of those challenges have been dismissed, dropped or put on hold. But the Colorado Supreme Court decided in December that Trump would be disqualified from the state’s ballots for violating section three of the US constitution’s 14th amendment, which prohibits officers who have engaged in insurrection or rebellion from holding office. His campaign called the ruling “completely flawed”.
It will be the first time the Supreme Court tackles how the constitutional measure originally crafted to stop Confederates from holding office after the civil war bears on presidential candidates today.
The case turns on several legal issues, including whether state courts, rather than Congress, may determine a presidential candidate’s eligibility; whether section three can be applied to the presidency; and whether Trump engaged in insurrection.
Aziz Huq, professor at the University of Chicago Law School, argued there was “no question” that, as in other instances, ideology could play a part in the justices’ decision. But “other considerations . . . are in play”, including concerns around the court’s public perception and potential interference in democratic processes, he added. These “are varyingly held across the political spectrum and to different degrees will likely play a role for several, maybe not all, of the justices”.
Underlining the stakes of the case, the Supreme Court has been flooded with amicus briefs advocating on behalf of both sides.
Some responses to the case have followed ideological divisions. Ted Cruz, a Republican senator from Texas, signed a brief alongside 177 members of the Congress in support of Trump, arguing Colorado’s decision was a “serious risk to the democratic process”.
Others broke from party lines. A group of senior officials who worked in the past six Republican administrations — including ex-judge Michael Luttig and former acting US attorney-general Stuart Gerson — filed a brief in support of Colorado. They said Trump “deliberately tried to break the Constitution” when he incited an “armed force” to block the transfer of power.
In a separate brief, three ex-Republican governors, including former Republican National Committee chair Marc Racicot, said ignoring “treason or treachery . . . would recklessly and irresponsibly risk the end of our republic”.
But even some Trump critics were sceptical of letting the state ruling stand. Bill Barr, Trump’s former US attorney-general who has since become a fierce critic of the former president’s actions in the aftermath of the 2020 election, co-signed a brief arguing Colorado had misinterpreted section three. “[W]hatever one thinks of the behaviour of former president Trump on January 6 2021, the Colorado Supreme Court’s decision should be reversed,” the brief said.
“Democracy is very much on the ballot,” said Michael Klarman, a professor at Harvard Law School. “The Republican party’s a threat to democracy, but the [Supreme] Court is not the right institution to say that. The people need to say that themselves.”
The Biden administration has largely remained silent on the matter. Supporting Colorado could open it to criticisms of impartiality or election meddling as the 2024 campaign — and the president’s re-election bid — is under way.
The immediate impact of the decision will be limited to Colorado’s primary ballot. But if the challengers win, they will revive similar arguments elsewhere. If they lose, it will quash what anti-Trump campaigners had hoped would be a winning legal argument.
The case’s complexity, sensitivity and lack of precedent mean it is not certain that the justices — who are split 6-3 between conservatives and liberals — will vote along ideological positions. Three of them — Amy Coney Barrett, Brett Kavanaugh and Neil Gorsuch — were appointed by Trump.
The case is a thorny challenge for Chief Justice John Roberts, who has sought to retain the court’s impartiality after dramatic decisions split down ideological lines raised new questions about whether the court has become too politicised. One such case was the 2022 reversal of Roe vs Wade, the ruling that had enshrined the constitutional right to an abortion for nearly 50 years.
The highest court could face at least two other cases this term with consequences for Trump. A federal appeals court on Tuesday denied his attempt to claim presidential immunity in a federal criminal case over the 2020 presidential election, which will probably end up at the Supreme Court. The court has also agreed to hear a case dealing with the scope of a provision that outlaws attempts to obstruct an official proceeding — a central issue for Trump’s federal indictment as well as hundreds of January 6 2021 prosecutions.
“Any decision will be perceived by the loser as a political decision,” said Mark Graber, professor at the University of Maryland School of Law who filed a brief in support of Colorado. “There is no off-ramp for the court to avoid criticism. The question is whether Roberts can put together a bipartisan court majority on this.”