On Feb. 8, I listened to the United States Supreme Court oral arguments in Trump v. Anderson, a case deciding if the Colorado Supreme Court was correct that former President Donald Trump is ineligible to be on the ballot due to the insurrection clause of the 14th Amendment. Many who listened, myself included, are predicting a decision in Trump’s favor.
Those who haven’t paid close attention see this as a simple case of the Republican supermajority on the court being influenced by their partisanship or loyalty to the president who nominated them. However, this is not the case. Indeed, it appears likely that 2/3 of the Democrat Justices — Justices Kagan and Jackson — will join the conservative Justices in this decision.
Why? Because this is not about Trump or his party. Removing Trump from the ballot would have harmful consequences for democracy, now and in the future.
Trump's attorneys have advanced several arguments, some involving Constitutional semantics. Others, however, have real, practical consequences if the Supreme Court were to uphold the Colorado decision. It was these arguments the Justices seemed particularly drawn to.
These were also the arguments that made me realize Trump shouldn’t be removed from the ballot. His removal would not just affect Trump, it could set a precedent that could impact any candidate, Democrat or Republican. Anyone who cares about the fairness of our elections should be paying careful attention to this case.
At its core, Trump v. Anderson comes down to a debate that has occurred since the founding of this country — state versus federal power. Trump argues the decision to disqualify a candidate for participating in an insurrection is the sole responsibility of Congress. If the Supreme Court were to uphold the Colorado decision, one major concern is it would hand the power to make this decision, and therefore effectively decide the 2024 election, to Colorado.
Justice Kagan summarizes this concern stating, “I think the question that you have to confront is why a single state should decide who gets to be president of the United States… [that decision] sounds awfully national to me.” Both liberal and conservative Justices voiced similar worries.
Justice Alito expressed concern that in the future, various state courts could reach opposite conclusions if this power was left in their hands. Different courts could admit different evidence, hear different witnesses and come to different conclusions. Justice Alito proposed a hypothetical in which one state determines a particular candidate is an insurrectionist. He argues if they were to agree with the Colorado Supreme Court in this case, that one state, that one judge (possibly an elected trial judge), could decide that election for the rest of the country based solely on their version of the facts.
My worry (which Alito alludes to when referencing an “elected trial judge”) is that in this hypothetical, it could be an elected judge motivated by the partisanship of his voters, rather than fairness or justice, who makes the decision that could decide our election.
The concern that worries me most was raised by Chief Justice Roberts. He predicted that if they were to uphold the Colorado decision, “... a goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others for the Republican candidate, you’re off the ballot.” This is because “Insurrection is a broad, broad term. And if there’s some debate about it… then eventually, what, we would be deciding whether it was an insurrection when one president did something as opposed to when somebody else did something else?” There is real debate about what qualifies as insurrection. Frequent comparisons have been made between Jan. 6 and riots that occurred in the wake of George Floyd’s death, including by Trump’s own legal team.
The attorney arguing on behalf of the Anderson litigants (those challenging Trump’s ballot eligibility) responded to the retaliation point stating the insurrection clause has been dormant for 150 years. In other words, its use is extraordinarily rare. However, impeachment was also rare, until it wasn’t. Like impeachment, insurrection has the ability to become just another political tool to manipulate democracy.
What these concerns boil down to is the Justices considering the future consequences of the precedent they set in Trump v. Anderson. This case could open the floodgates to states crying “insurrection!” against any candidate they dislike. It is this worry for the future of democracy, rather than their opinions on the current candidates for election, that will decide this case.
Ashley Mason is a UF political science graduate student.
