A federal judge in Georgia gave an angry and demeaning lecture to Republican Party attorneys late Tuesday afternoon during a hearing over a lawsuit challenging last-minute efforts by Democratic-leaning counties to allow more people to vote in the Peach State.

On Friday, as the in-person early vote period ended in Georgia, numerous counties said they would allow voters to drop off their mail-in ballots at county buildings over the weekend.

With a quickness typical to election-related litigation, Donald Trump‘s campaign and state Republicans sued to segregate those ballots in state court. Meanwhile, the Republican National Committee sued in federal court using substantially similar legal arguments.

Now, both of those lawsuits have been rejected.

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U.S. Supreme Court

Did ‘grand bargain’ fail to materialize in Trump ballot case? Metadata leads to speculation

By Debra Cassens Weiss

March 5, 2024, 10:07 am CST

The U.S. Supreme Court left “a big clue dangling in the metadata” about potential negotiations when it issued a unanimous decision Monday that kept former President Donald Trump on the ballot in Colorado, according to an article in Slate.

Although all the justices agreed that Trump should remain on the ballot, four justices said the majority should not have gone further by ruling that Congress had the exclusive power to enforce the constitutional ban on insurrectionists holding office.

The four justices expressed their views in two separate concurrences. One was jointly written by Justice Sonia Sotomayor, Justice Elena Kagan and Justice Ketanji Brown Jackson—the high court’s liberal justices—and the other was written by conservative Justice Amy Coney Barrett. The liberal concurrence was angrier in tone than Barrett’s, who emphasized unanimous agreement on the ballot issue and stated that “this is not the time to amplify disagreement with stridency.”

But the metadata shows that Sotomayor was initially a partial dissenter, according to Slate, Above the Law and Law360.

One way to see the metadata, on some computers, is by copying and pasting the top of the liberal justices’ concurrence that says “Sotomayor, Kagan and Jackson J.J., concurring in judgment” into a Microsoft Word document. The pasted version reads “Sotomayor, J., concurring in part and dissenting in part.” The same metadata shows when you search for the word “dissent.”

“What happened?” Slate asks. “Most obviously, the Supreme Court rushed out this opinion and forgot to check the metadata. … The deeper question remains, of course: Why was an opinion originally authored by a lone justice as a partial dissent transformed into a concurrence authored by all three liberals together?”

Paul Schiff Berman, a professor at the George Washington University Law School, thinks that Sotomayor’s opinion may have become a concurrence in an attempt to emphasize unanimity.

“I think they really wanted to try to make this a unanimous opinion in order to say this is not about ideology and it’s not about politics,” he told Law360.

Slate offers further speculation. One explanation is that Kagan and Jackson “were keeping their votes fluid” in the hopes of joining with Barrett to seek a fifth vote for a narrow holding that did not address whether Congress had exclusive authority to enforce Section 3 of the 14th Amendment. When Kagan and Jackson failed in that quest, they teamed up with Sotomayor.

“Broaden the scope of the potential negotiations, though, and things get more interesting,” Slate says. “After oral arguments, many smart court watchers mused that the justices might reach a grand bargain that tied this case to a separate dispute involving Trump’s claim of immunity from criminal prosecution for election subversion. The liberal justices might agree to keep Trump on the ballot if the court also refused to take up the immunity case.”

If the Supreme Court had refused to hear the immunity case, the federal appeals court decision holding that Trump did not have immunity from prosecution would remain in place. And that would mean that his criminal trial in the federal election-interference case might take place before the presidential election.

“That, of course, didn’t happen,” Slate says. “The court sided with Trump on the ballot issue and took up his immunity case last week on a less-than-speedy timeline, helping him run out the clock to November.”

Slate raises other possibilities, including that Barrett agreed to hear the immunity case “on a marginally expedited basis” this term, rather than push the case onto the docket for next term.

Or maybe evidence of a bargain will turn up when the Supreme Court issues its opinion in the Trump immunity case, according to Above the Law.

“Perhaps buried in the metadata,” Above the Law says.

See also:

“SCOTUS agrees to hear Trump’s presidential immunity claim”

“What happens next after Supreme Court agrees to hear Trump immunity case”

How the U.S. Supreme Court writes its opinion in Trump v. Anderson could have enormous long-term implications. The oral arguments on Feb. 8 left no doubt that the Supreme Court will reverse the Colorado Supreme Court and hold that Donald Trump is not disqualified from being on the ballot for the Republican primary in that state.

Although the result was obvious from the two and a half hours of questions by the justices, it was unclear what rationale the court will adopt. Many of the possibilities would do serious damage to future elections and to constitutional law.

States can’t enforce the 14th Amendment

Chief Justice John Roberts suggested during oral arguments that the 14th Amendment was meant as a limit on state power, not authority for states to enforce the 14th Amendment. Commentators, such as New York Times columnist David Brooks, have praised this argument.

But it is just wrong. States enforce the 14th Amendment all the time. The Bill of Rights is applied to the states through the due process clause of the 14th Amendment. Literally every day, state courts hearing criminal cases enforce provisions such as the Fourth Amendment’s limits on police search and seizures and the Sixth Amendment’s requirements during a criminal trial. If a state adopted an unconstitutional law restricting voting, surely state courts could enjoin it.

There is no reason why state courts cannot also enforce Section 3 of the 14th Amendment. That provision, like all, is meant to limit what the government can do. And a state court keeping Donald Trump off the ballot is enforcing the limits imposed by the Constitution. If the court writes its opinion that states are limited in their ability to enforce the 14th Amendment, the implications would be huge.

The voters should not be disenfranchised

Many justices seemed to endorse this view at oral argument. There is a surface appeal to the idea that the voters should be able to have on the ballot and then elect whomever they want.

The problem with this argument, though, is that courts never could enforce any limits on who can be a candidate. Many states have restrictions on who can run for office. California, for example, requires that the attorney general and district attorneys be lawyers. Cities have requirements that officeholders live in their jurisdictions. Laws across the country require that a person live in the district from which he or she is elected. The Constitution imposes other limits on who can be president such as requiring that the person be at least 35 years old, a natural-born citizen, a resident for 14 years and not have served two terms as president already.

All of these restrictions disenfranchise voters in that they limit who they can vote for. If the court embraces the view that the voters get to choose notwithstanding Section 3 of the 14th Amendment, not only would it nullify that provision, but it would seem to put all limits on who can hold office in jeopardy.

One state should not decide for the country

At the oral argument, several of the justices, including liberal ones, raised this concern. Again, there is appeal to this concern and a fear that it will open the door to states in the future exercising this power in nefarious ways.

But this argument is flawed in that it would not be one state deeming that Donald Trump violated Section 3, but rather the United States Supreme Court. Every case must begin in one state, whether in federal court or state court there. The trial court will hold a hearing, as was done in Colorado with a five-day hearing over whether Trump was disqualified.

But then there are appeals, ultimately to the U.S. Supreme Court. And it is the Supreme Court which will resolve whether Section 3 applies, including whether the individual participated in an insurrection or rebellion. Some have expressed concern that the fact finding of a state court could bind the Supreme Court. The high court, though, can review the adequacy of the fact finding, as it constantly does in other cases. Besides, in this instance, the facts are not in doubt; there is no doubt as to what occurred on Jan. 6 or what Donald Trump did.

Every time a federal district court declares a law unconstitutional and issues a nationwide injunction, a court in one state is making a decision for the country. If enforcement of Section 3 cannot begin in one state, that provision is effectively nullified. And if this rationale is followed, it would call into question the ability of state and federal trial courts ever to engage in fact finding and make rulings that affect the entire country.

Section 3 only means that a person cannot serve as president; it does not keep a person from running

Justice Neil Gorsuch suggested this in his question. But this would mean that no restrictions on who can serve in an office ever could be enforced to keep the person off the ballot. This would be highly undesirable because it would mean that people would be wasting their votes by selecting individuals ineligible to serve.

This argument would mean that the people could vote for someone ineligible to serve, only for the court to act after the election. This would be far worse, as it would mean that the court could decide if Trump was eligible for president only after he was elected. If there is concern for disenfranchising the voters and causing political chaos, this would surely do it.

My point is that if the Supreme Court is going to reverse the Colorado Supreme Court and allow Trump to run for president, it should be very careful how it does so. Many of the rationales suggested at oral argument would have devasting implications for other elections in the future.

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Erwin Chemerinsky is dean of the University of California at Berkeley School of Law and author of the newly published book A Momentous Year in the Supreme Court. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of The Case Against the Supreme Court; The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman; and Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights.

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This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

Early voting in Colorado has been well underway and Super Tuesday is only days away with presidential primaries opening in 16 states and Donald Trump as the front-runner and presumptive nominee for the Republican Party. Despite this, the U.S. Supreme Court is still silent on whether it will remove the former president from the ballot in Colorado or keep him on despite findings from two lower courts that he engaged in insurrection.

The high court heard arguments over three weeks ago, fielding questions on the balance between state and federal powers and with Chief Justice John Roberts — and several other justices — expressing skepticism over whether a national election could “come down to just a handful of states.”

It seems unlikely that the court will rule in favor of Colorado voters who argue Trump’s conduct leading up to and on the Jan. 6 attack on the Capitol should disqualify him under Section III of the Fourteenth Amendment. The statute states that no person having previously taken an oath as an “officer of the United States” and is found to have engaged in insurrection is qualified to hold office.

As a decision that could drastically shape the rest of the 2024 election season lurks just out of sight, the legal drama was otherwise unabated in Trump’s world for yet another week.

Law&Crime takes a look at those developments and others in Trump’s cases in Florida, Georgia, Washington, D.C., and New York.

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Election Law

Colorado Supreme Court opinion gives SCOTUS possible avenues to keep Trump on ballot

By Debra Cassens Weiss

December 20, 2023, 11:24 am CST

The Colorado Supreme Court stayed its 4-3 decision Tuesday that keeps former President Donald Trump off the Colorado primary ballot, allowing the U.S. Supreme Court to step in.

The majority ruled that Trump is barred from ballot access under Section 3 of the 14th Amendment. The provision bars people from holding U.S. office if they engaged in insurrection or rebellion after taking an oath “to support the Constitution of the United States” as “a member of Congress or as an officer of the United States or as a member of any state legislature or as an executive or judicial officer of any state.”

The Colorado Supreme Court said Trump engaged in insurrection in the lead-up to the Jan. 6, 2021, U.S. Capitol riot. The decision is the first to block Trump from the ballot. The Trump campaign said it would appeal and noted that all the state supreme court justices are appointees of Democratic governors.

Among the publications covering the Dec. 19 opinion are the Washington Post, the New York Times, Bloomberg Law, the Wall Street Journal and Axios.

The Election Law Blog, the National Review and Original Jurisdiction consider how the Supreme Court might rule.

“I’m guessing that SCOTUS stays the Colorado Supreme Court’s ruling, sets the case for argument in February or March, and reverses, with at least one of the liberal justices joining the conservatives in ordering Trump back on the ballot,” wrote Above the Law founder David Lat at Original Jurisdiction.

Jessica Levinson, an election law professor at the Loyola Law School in Los Angeles, agreed with Lat on the outcome.

“The justices don’t want it to look like they’re taking this fundamental question away from the electorate,” Levinson told the Wall Street Journal. “The only real question is which issue will the Supreme Court reverse on.”

The Colorado Supreme Court ruled after a trial-level judge ruled that Trump did engage in insurrection, but the 14th Amendment does not apply to presidents. The judge, Judge Sarah B. Wallace of Denver, cited two reasons.

First, the amendment lists several types of office holders who have taken constitutional oaths who would be banned from office as an insurrectionist, but it does not specifically list presidents. Second, the amendment applies to office holders who have taken an oath “to support the Constitution,” wording that does not track the presidential oath to “preserve, protect and defend” the Constitution.

The Colorado Supreme Court summarized its ruling in bullet points. The reasoning includes:

  • The Colorado election code permits the challenge to Trump’s status as a qualified candidate.

  • Congress does not have to pass implementing legislation to make Section 3’s disqualification provisions effective.

  • The political question doctrine does not bar a court from considering Trump’s eligibility under Section 3.

  • Section 3 applies to the presidency.

  • It was not an error for the trial judge to consider the Jan. 6, 2021, report by Congress, it was not error to conclude that the Capitol riot was an insurrection, and it was not error to conclude that Trump engaged in insurrection through his actions.

  • Trump’s speech before the Capitol riot was not protected by the First Amendment.

Each of the three Colorado Supreme Court dissenters cited differing reasons why they ruled for Trump, and none matched Wallace’s reasoning.

One of the dissenters would have tossed the case because Section 3 is not self-executing, and Trump has not been charged with insurrection under a federal law that disqualifies defendants from office after a conviction. One would have dismissed the case because the state election code did not give courts authority to decide Section 3 claims. The third said the court didn’t have the authority to decide the issue without a criminal conviction under the state election code, which decides issues at a “breakneck pace” without rigorous due process procedures.

Rick Hasen a professor at the University of California at Los Angeles School of Law, noted that Trump would have to prevail on only one of the legal issues before the Supreme Court.

“So in some ways, the legal odds are with him,” Hasen wrote on the Election Law Blog.

“It is far from clear that the U.S. Supreme Court will reach the merits—there are many legal doctrines like ripeness and mootness that would give the court a way to avoid deciding the issues in the case,” Hasen wrote.

Dan McLaughlin, a senior online writer for the National Review, agreed that the Supreme Court could decide the issues without deciding whether Trump engaged in insurrection.

“Trump has a number of federal law defenses,” McLaughlin wrote at the National Review. They are: “that Section 3 isn’t self-executing without implementing legislation or a criminal conviction, that it doesn’t cover the president, that the First Amendment protects Trump’s speech and wasn’t implicitly repealed in that regard by the 14th Amendment, that the Republican Party has a First Amendment right of association to put an ineligible candidate on its primary ballot, and even that Trump may have a legal defense because the Senate didn’t convict him on effectively the same charge.”

McLaughlin thinks that the Supreme Court will have to rule before Jan. 5, which is the deadline to certify candidates for the Colorado ballot.

“Merry Christmas, John Roberts,” McLaughlin wrote. “Hope you and your colleagues didn’t have plans.”

See also:

“GOP can put Trump on primary ballot, even if he is ineligible for office, top Minnesota court rules”

Judges sitting on the highest court in the Mile High State are reportedly under extra protection after receiving threats over their decision to bar Donald Trump from the 2024 presidential ballot.

As Law&Crime previously reported, the Colorado Supreme Court ruled that the former president is ineligible to appear on the ballot because he “engaged in an insurrection” by taking steps to overturn President Joe Biden’s 2020 electoral win. The high court’s ruling reversed a lower court’s decision that Section III of the Fourteenth Amendment to the U.S. Constitution — which bars people who have violated an oath to uphold the Constitution from serving in public office — did not apply to presidents.

In the wake of that reversal, threats have been made against the justices, according to a CNN report. That includes the names of the four justices who joined the majority decision appearing frequently in “incendiary” online posts in extremist forums, CNN reported.

“The FBI is aware of the situation and working with local law enforcement,” an FBI spokesperson confirmed to Law&Crime in an email. “We will vigorously pursue investigations of any threat or use of violence committed by someone who uses extremist views to justify their actions regardless of motivation.”

Police in Denver, Colorado, have confirmed that “incidents” have occurred.