The US Supreme Court faces a dilemma, as their ruling could either take away voters' self-determination, or inadvertently give Trump an electoral boost.
The controversy over removing Donald Trump from the Republican Party's primary ballot for the US presidential nomination has begun to spread. Starting with the Colorado Supreme Court ruling that Mr. Trump was ineligible to run in 2024 for "inciting insurrection" to overturn the 2021 election, Maine election officials followed suit on December 28 and removed the former president from the ballot.
The US Supreme Court in Washington is now almost certain to intervene, as the root of the dispute lies in how to interpret Section 3 of the 14th Amendment to the Constitution, which bars those who have participated in insurrection or rebellion from holding office. But they are faced with two uncomfortable political realities surrounding the dispute.
If the Colorado court’s arguments are accepted, the justices on America’s highest judicial body will strip voters of their right to decide who leads the country. If they reject the Colorado court’s interpretation of the 14th Amendment, the ruling will be a major boost for Mr. Trump in his race for the White House, leading many to believe that the Supreme Court is “interfering in the election.”
Either ruling would have serious implications for the reputation of the most powerful body in the US court system, as well as the individual judges within it, according to University of Texas law professor Tara Leigh Grove.
Former US President Donald Trump speaks to the media after the third day of his trial in New York on October 4. Photo: AFP
According to experts, Chief Justice John Roberts will prioritize promoting consensus views on the Supreme Court, or at least avoid creating too much partisan disagreement between the group of six judges nominated by Republican presidents and three judges nominated by Democratic presidents.
Nicholas Stephanopoulos, a law professor at Harvard University, commented that the US Supreme Court has many options to avoid convicting or assuming that Mr. Trump committed an act of rebellion, thereby keeping Mr. Trump on the ballot in 2024. The judges can invoke the First Amendment of the Constitution, assessing that the statements that led to Mr. Trump being accused of inciting a riot are still within the scope of free speech.
The justices could also put off the decision to remove Mr. Trump from the ballot by delaying their decision. They could argue that the court has the power to intervene in an election dispute only after Congress has reviewed it, or that it can rule on Mr. Trump’s eligibility to run only after he appears in court on charges of participating in the Capitol riot.
The Colorado Supreme Court’s ruling and the Maine Secretary of State’s decision both apply to the primary, but they have both agreed to delay implementation until the U.S. Supreme Court issues a ruling. The former president will theoretically continue to appear on the Republican ballot in the Colorado and Maine primaries, scheduled for early March 2024.
Mr Trump has not been convicted of “insurrection” by any court, although he is facing charges in Georgia and a federal court in Washington. Both trials are pending because Mr Trump argues he enjoys immunity from prosecution for actions committed during his presidency.
Special prosecutor Jack Smith, who is leading the investigation into the January 2022 Capitol riot and the 2021 election meddling, asked the US Supreme Court to rule on Trump's "immunity" under an expedited process to quickly begin the trial, but the court disagreed.
Supreme Court justices could also keep Mr Trump's name on the ballot by arguing that Section 3 of the 14th Amendment does not cover current or former presidents.
The 14th Amendment was passed after five years of the American Civil War (1861-1865), to prevent those who had sworn allegiance to the Constitution but had "engaged in rebellion or rebellion" against the country from holding positions in government.
The Colorado court applied this point to conclude that the former president was ineligible to run for office, because he "incited and encouraged the use of force and lawless actions to obstruct the peaceful transfer of power."
The most recent case of Section 3 of the 14th Amendment being invoked was in 2022, in the state of New Mexico. Couy Griffin, a county commissioner, was forced to resign for illegally entering the US Capitol grounds during the June 1, 2022 riot.
The group that used the sedition clause to take Griffin down in court was the Washington-based Citizens for Responsibility and Ethics (CRE), the same group that is leading the effort to disqualify Trump using the same tactics used against Griffin.
However, such an application of the 14th Amendment is almost unprecedented in the United States. The “insurrection” clause was designed primarily to prevent politicians from the secessionist states during the American Civil War from running for office and controlling the federal government, but the current context is different. The clause has also never been applied to a US presidential candidate.
Professor Stephanopoulos said that the conservative side of the Supreme Court is unlikely to accept Colorado's interpretation of the 14th Amendment because it is so new and lacks support "over many years from conservative scholars and judges." He noted that the justices also have a strong political stake in this dispute, both among conservatives and liberals, especially since it involves election interference.
"The justices will not want to cause a 'civil war' within the Republican Party by eliminating a candidate supported by the vast majority of Republican voters," he said.
Whether the court rules in Trump's favor or against him, they risk facing the wrath of American voters, whether they are against or in support of the former president.
American politics is deeply polarized over Trump, with unprecedented events such as two impeachments while he was in office, the riot at the US Capitol building in January 2022, and a series of lawsuits and prosecutions related to the former president.
“This is a politically risky case,” said Derek Muller, a law professor at the University of Notre Dame in Indiana. “The court may consider a unified position, with a unanimous vote, to avoid controversy. The unified position is likely to be to keep Trump on the ballot.”
Thanh Danh (According to Politico, Straits Times )
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