Ruling against Trump raises questions only the SC can answer

Erwin Chemerinsky, Tribune News Service

The Colorado Supreme Court did the country an enormous service by ruling that Donald Trump is ineligible to be president and squarely presenting the constitutional issue before the US Supreme Court. The high court should take the case and decide quickly whether Donald Trump is disqualified from the ballot because of Section 3 of the 14th Amendment.

It would be a political nightmare to resolve this question after Trump wins the Republican nomination or even worse, after he’s elected president. Section 3 of the 14th Amendment explicitly precludes anyone who has previously taken an oath of office from holding public office if they have “engaged in insurrection or rebellion” against the United States. The provision was adopted to keep Confederates in the Civil War from holding federal office.

The justices will need to decide whether that provision applies to Trump as a former president, what constitutes an insurrection, and whether Trump participated in one. Some, including the chief justice of the Colorado Supreme Court in a dissenting opinion, say that it should be left to the political process to decide who becomes the next president of the United States. But that stance would effectively toss out all other constitutional provisions that limit who can be president. Article II of the Constitution says that the president must be 35 years old, a natural born citizen, and 14 years a resident of the United States. Failure to meet those qualifications would eliminate a potential candidate. Section 3 of the 14th Amendment is no different.

Some have questioned whether throwing Trump off a ballot violates the “political question doctrine,” which maintains that the court should stay out of some political controversies. But that doctrine is often misunderstood. In no way does it prohibit the court from deciding cases involving elections, which, of course, can determine electoral outcomes.

For example, the Supreme Court ruled in 1962 that federal courts may hear challenges to state redistricting plans and has rejected the argument that this is a political question inappropriate for judicial review. In 2010, the justices ruled in Citizens United vs. Federal Election Commission, that corporations have the right to spend unlimited amounts in political campaigns even though that unquestionably decides many elections. In 2013, in Shelby County vs. Holder, the court declared unconstitutional a crucial provision of the Voting Rights Act of 1965, which certainly changed the outcome of many elections. Most dramatically, in George W. Bush vs. Al Gore, in 2000, the court effectively decided the outcome of the presidential election. The “political question doctrine” only comes into play in a far more limited situation: when the Constitution assigns the matter to the other branches of government to resolve.

For example, the court has often said that challenges to the president’s conduct of foreign policy are generally political questions. Thus it has refused to hear lawsuits challenging the constitutionality of the Vietnam War. Sometimes the court has said that a matter is a political question because there is no way for the judiciary to formulate principles for deciding what is unconstitutional. In Rucho vs. Common Cause, in 2019, the court said that it could not determine whether partisan gerrymandering — where a political party draws districts to maximise safe seats for that party — as opposed to, say, racial gerrymandering, is unconstitutional because there is no way for a court to resolve what is too much use of politics.

But resolving the meaning of Section 3 of the 14th Amendment doesn’t involve coming up with new principles. It requires the court to apply standard methods of constitutional interpretation even though this is an unprecedented case.