“I just want to find 11,780 votes, which is one more than we have . . . So what are we going to do here, folks? I only need 11,000 votes. Fellas, I need 11,000 votes. Give me a break.” –President Donald Trump, speaking by phone to Georgia Secretary of State Brad Raffensperger on Saturday, January 2, 2021.
“I think that the question that you have to confront is why a single state should decide who gets to be President of the United States.” – U.S. Supreme Court Justice Elana Kagan to attorney Jason Murray on Thursday, February 8, 2024.
The Supreme Court has now done what pretty much every commentator expected it to do, overturning the Colorado state Supreme Court, and ruling that Donald Trump cannot lawfully be removed by state officials from the ballot of Colorado or any other state.
The ruling, decided by a 9-0 vote, was unanimous. The core rationale for the decision was simple: the Fourteenth Amendment was intended to codify principles of national citizenship over and above “state’s rights” claims advanced by the defeated Confederacy, and to leave it to individual states to enforce the Amendment’s Section III would undermine the very idea of national citizenship.
While I am no expert in constitutional law, there are failures of reasoning in the decision that are apparent even to me...
As the decision states, such a confusing “patchwork,” would “sever the direct link that the Framers found so critical between the National government and the people of the United States as a whole” (p. 12). Separate concurring opinions, by Amy Comey Barrett and by Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, took issue with the ruling decision’s claim that according to Section 5 of the Amendment, only an act of Congress could enforce Section 3 by removing one or more individuals from a ballot. But all nine Justices agreed that, however Section III might theoretically be enforced, it was neither “self-enforcing” in general nor enforceable by individual state decisions. And so Trump must be on the ballot.
As with all SCOTUS decisions, we can expect many experts in constitutional law and U.S. history to take issue with the reasoning behind this case. At the very least, it must be noted that a substantial number of amicus curiae briefs were submitted in support of Trump’s removal, including briefs from major conservative experts, such as retired U.S. Judge J. Michael Luttig, one of many conservatives who actually spearheaded the effort to disqualify Trump from seeking office. The SCOTUS decision apparently thought little of the many powerful arguments advanced in these briefs.
While I am no expert in constitutional law, there are failures of reasoning in the decision that are apparent even to me (if the Amendment is considered to be so scrupulous about disqualification, why does Section 3 explicitly outline the provisions for removing the disability without being equally explicit about the provisions for instating it?). But there surely are “arguments” on either side of this matter, and it was obvious that this Court would never rule against Trump’s “right” to be on the ballot. The real question, always, was how it would explain its decision, and how much dissent the decision would engender. And for me, the most disappointing aspect of the decision was not that a strong conservative majority would support Trump, but that the three liberal Justices would not simply concur, but would squander the opportunity to expose the hypocrisy of Trump’s appeal and, even more important, the underlying frailties of the constitutional system that continue to empower Trump’s assaults on liberal democracy.
That this opportunity would be squandered was clear as soon as Elena Kagan spoke the words in oral argument that are quoted at the very top, words that might well have been spoken for all nine members of the Court, for they are at the heart of the unanimous decision.
Why should a single state decide?
This is an excellent question. But Kagan failed to seriously consider it, by failing to ask a number of essential follow-up questions of the Trump legal team, and then to incorporate these matters into a strong opinion, whether in concurrence or dissent, that called out Trumpism for its attempts to prey on Constitutional weaknesses.
Question 1: Why did Donald Trump work so hard, from November 3, 2020 until January 6, 2021, to pressure one guy—the Secretary of State of a single state, Georgia–to “find” a few thousand votes, in order to claim victory in an election that he lost by seven million popular votes? And why did he exert similar pressure on state officials in a few other “swing states”—Arizona, Wisconsin, Pennsylvania—in the hope of claiming victory by winning the winner-take-all elections in those individual states?
Question 1a: After so relentlessly attempting to change the outcome in a few states, is it not the height of hypocrisy and cynicism for Donald Trump to now argue that no single state, or handful of states, should by right determine a presidential election—especially since this very scenario played out in both George W. Bush’s 2000 victory and Trump’s 2016 victory, both of which hinged on narrow vote margins in a few states and not on winning the national popular vote? Only now this is a problem? Really?
Question 1b: Beyond hypocrisy, back in October 2020, Barton Gellman published a brilliantly prescient piece in The Atlantic entitled “The Election That Could Break America.” This is what he warned:
Close students of election law and procedure are warning that conditions are ripe for a constitutional crisis that would leave the nation without an authoritative result. We have no fail-safe against that calamity. Thus the blinking red lights.
. . . The worst case . . . is not that Trump rejects the election outcome. The worst case is that he uses his power to prevent a decisive outcome against him. If Trump sheds all restraint, and if his Republican allies play the parts he assigns them, he could obstruct the emergence of a legally unambiguous victory for Biden in the Electoral College and then in Congress. He could prevent the formation of consensus about whether there is any outcome at all. He could seize on that uncertainty to hold on to power.
Trump’s state and national legal teams are already laying the groundwork for postelection maneuvers that would circumvent the results of the vote count in battleground states. Ambiguities in the Constitution and logic bombs in the Electoral Count Act make it possible to extend the dispute all the way to Inauguration Day, which would bring the nation to a precipice. The Twentieth Amendment is crystal clear that the president’s term in office “shall end” at noon on January 20, but two men could show up to be sworn in. One of them would arrive with all the tools and power of the presidency already in hand . . . “
Is this not exactly what happened, as documented extensively by the House January 6 Committee, and as determined by the factual ruling of the Colorado Supreme Court? And does this not demonstrate that Trump was intent on exploiting precisely the absence of a national popular vote? And doesn’t this deserve attention at every available opportunity?
Question 2: It is claimed that if a state such as Colorado, or Maine, were to remove Donald Trump from their ballot on Section 3 grounds, this would create a confusing “patchwork,” and would “sever the direct link that the Framers found so critical between the National government and the people of the United States as a whole.” But is not our entire constitutional system a confusing patchwork that severs the direct link between the citizens of the United States and the national government of the United States?
Is this not the very function of the United States Senate, in which Wyoming’s 581,000 citizens have the same national representation as California’s 39 million citizens?
Is not our entire constitutional system a confusing patchwork that severs the direct link between the citizens of the United States and the national government of the United States?
Is this not the very function of the Electoral College itself, which very deliberately elevates the importance of a small group of electors selected in each of the 50 states, and explicitly rejects the principle that a national popular vote should determine who is the President of the United States?
Is this not the very system of election administration established by Article I of the U.S. Constitution, whose Section 4 clearly states: “the times, places, and manner of holding elections, for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by Law make or alter such regulations, except as to the places of chusing Senators?”
Question 3: If both the principle of national citizenship, and “the direct link that the Framers found so critical between the National government and the people of the United States as a whole,” are so important, then why has the Republican Party for decades pursued a deliberate policy of using its control of statehouses to limit the voting rights of large numbers of citizens, by purging rolls, instating challenging voter identification requirements, limiting early or Sunday voting, and using local control of election administration to limit the number of polling places and their hours of operation?
And when the Democrat-controlled House of Representatives in 2021 decisively passed two major pieces of national legislation designed to further nationalize aspects of election administration and voting rights enforcement in order to codify the principle of citizen equality—H.R.1, the For the People Act, and H.R. 4, the John Lewis Voting Rights Advancement Act—why did Republicans work feverishly to demonize, oppose, and obstruct the passage of the legislation, stalling both bills in the Senate and effectively killing them? Senate Republican leader Mitch McConnell went so far as to denounce such legislation on the Senate Floor as “Democrat power-grabbing,” insisting that voting rights enforcement “is not a federal issue” and ought to be left to the states?
Why should states decide how to establish and administer the electoral rules that govern all elections in their state, including federal elections?
Because the Constitution prescribes this, and Republicans have opposed any legislative effort to change it.
What will become of national citizenship if a “patchwork” of state and local rules mediates, limits, and severs the link between American citizens and the U.S. government?
A very good question indeed. But its answer is staring us in the face: democratic citizenship will be eviscerated, and the enemies of constitutional democracy will seize the opportunity to claim electoral victories they did not win, and if successful pursue further means of weaking constitutional democracy.
Here’s another question: what would have happened if the three liberal Justices on the Supreme Court, whatever they thought about the wisdom of the Colorado decision, had taken the full measure of the hypocrisy behind all of those Republicans—on the Trump legal team, in the Congress, and on the Court itself—who have long upheld the “patchwork” system of anti-majoritarian processes that adulterate and diminish meaningful democratic decision-making, but who have now decided, when it suits them, to shed crocodile tears for the integrity of “the American people as a whole” and the right of “the voters” to decide elections?
We will never know.
It is sometimes argued that a great virtue of the Supreme Court’s judicial review is that the process of delivering opinions–including concurrent and dissenting opinions–promotes and elevates democratic deliberation, by making plain for the broad democratic citizenry the crucial opinions in play in important public controversies.
This might sometimes be true. But it was not true this week.
For this week the Supreme Court chose unanimously, via the logic supplied by Elena Kagan, to both promote a fiction about the Constitution and, in so doing, to empower MAGA Republicans to continue the lie that their assaults on democracy are done in the name of “election integrity” and the return of democratic sovereignty to “the people.”
