U.S. Supreme Court Seems Very Likely to Rule in Favor of Ballot Access for Trump

Posted on by February 8, 2024

The U.S. Supreme Court oral argument seems to show that the Colorado Supreme Court decision that keeps former President Donald Trump off the ballot will be reversed, perhaps unanimously. Some of the justices, both Democratic and Republican appointees, seem very bothered by the idea that states can make decisions about ballot access in connection with the insurrection clause, because there would be a patchwork effect.

Justice Elena Kagan mentioned that the U.S. Supreme Court decision Anderson v Celebrezze shows that states don’t have unlimited discretion to bar candidates from the ballot, even though Article Two says they can appoint presidential electors any way they wish. It is a good signal for ballot access that the U.S. Supreme Court is thinking about Anderson v Celebrezze, which struck down early petition deadlines for independent presidential candidates.

The attorney for the objectors, Jason C. Murray, reminded the Court three times that there were no ballot access restrictions in place in 1868. It is very good that the Court heard this. It is possible that some members of the Court may not have known that. The attorney explained that there were no government-printed ballots until the 1890’s, which is true and which needs to be better known.

Comments

U.S. Supreme Court Seems Very Likely to Rule in Favor of Ballot Access for Trump — 34 Comments

  1. “The attorney for the objectors reminded the Court three times that there were no ballot access restrictions in place in 1868. It is very good that the Court heard this. It is possible that some members of the Court may not have known that”

    Could it be that these lawyers have been reading BAN?

  3. ANY NEW AGE LAW SKOOOOLS WITH NOOOO ELECTION LAW COURSE REQUIREMENT ???

    HOW MANY ZILLION LAW REVIEW ITEMS COMING NOW FOR 2-3 YEARS MIN ???

  11. “a sympathetic, well-meaning elderly man with a poor memory.”

    IN SPEC COUN REPORT RE BIDEN

    CLUE 3+3

    IMMEDIATE PURGE OF SPEC COUN ??? DUH.

  12. DOES BIDEN HAVE ENOUGH OPERATING BRAIN CELLS TO OPERATE THE NUKE FOOTBALL ???

    DID HE TELL JILL BIDEN / HUNTER BIDEN / B. OBAMA HOW TO OPERATE IT ???

  13. I’ve always been supportive of states rights regarding ballot access, but I’m starting to change my mind and believe the feds need to make a fair and even applicable ballot access law now and take it out of the states responsibility.

  14. @RW,

    Not all states used paper ballots in 1868.

    The lawyer for Anderson claimed that presidential electors are not officers, that they just vote. But that is contrary to the explicit language of the Uniform Faithless Presidential Electors Act which states that if an elector fails to execute their pledge to vote for the presidential candidate, that they “vacate the office of elector”. Colorado has not implemented the UFPEA in statute, but the Colorado SOS did by edict in 2016. The SCOTUS implicitly upheld the statute by its reversal of the 10th Circuit decision in ‘Baca’, decided at the same time as ‘Chiafolo’.

    Some ironies: Rutherford B. Hayes was elected President in 1876 with the margin being the three electors appointed by the Colorado Legislature, the last time, electors were not appointed by direct popular election. That election had the effect of ending Radical Reconstruction (and perhaps ending enforcement of 14-3).

    Justice Neil Gorsuch is from Colorado. After his mom was appointed the head of the EPA, he finished up high school, university, law degree, etc. in the East, but was appointed a judge for the 10th Circuit, serving in Denver, a position he held when appointed to the SCOTUS, and to which he still has first cut at petitions for cert.

    Some of the judges did not understand Term Limits/Thornton and thought it applied to term limits for the presidency. The decision in Thornton was that states could not add to qualifications for Congress, even through the subterfuge of ballot access. But the principle has been applied in not barring in advance a congressional candidate who might reside in a State on election day.

    It applies to 14-3 because a disability might be temporary. It is thus dissimilar to the qualifications of age, natural born citizenship, and US residency which are immutable.

    It will be a 9-0 SCOTUS decision based on (1) premature application of disqualification; (2) chaotic application of different States.

    They might not want to determine it doesn’t apply to Trump, but does to Biden because of his oath as a Senator, plus it takes a fine tuned textualist interpretation. There might be a concurring opinion on this point, or perhaps they will just point out that they didn’t need to reach a conclusion.

  15. Jim, thank you for that thoughtful comment. However when you say “Not all states used paper ballots in 1868” that is misleading. They all used either private paper ballots, or used oral voting, which is the same thing for purposes of thinking about governmental power back then.

  16. @BDLU,

    Congress could provide manner elections for congressional elections, including ballot access. Representative Ron Paul had proposed limiting signature requirements for Congress to 500 signatures.

    Congress has generally been reluctant to impose limits because the representatives from California or Wyoming resent the representatives from Florida or New York telling others to do elections like “we do”. Representatives have come up through the political ranks and are familiar with the state laws in their state.

  17. @RW,

    I forgot to comment on application of ‘Anderson v Celebrezze’. That case was not about John Anderson, but rather his supporters.

    “Held: Ohio’s early filing deadline places an unconstitutional burden on the voting and associational rights of petitioner Anderson’s supporters.”

    I doubt that the SCOTUS will depend on that 5-4 decision, since the minority held that States had plenary authority over presidential elections.

    The Norma Anderson lawyers are arguing that they are protecting Colorado voters by preventing them from voting for an “ineligible” candidate, and that it does not matter whether it may be harmful to First Amendment rights of voters in other States. Justice Kagan might right a concurrence, but it wouldn’t be joined by the all justices. They won’t argue the point assertively.

  18. OK, but the presidency and vice presidency are special. They’re the only “offices” (lol) where states have to kind of work together to choose a single winning ticket (I’m simplifying here). So, if you’re going to try to justify a national ballot access law, it’s for the presidency that the strongest case can be made.

    I listened to the whole oral argument, but not sure what to add here.

  19. I found out a curiosity about Alexander Stephens who was VP of the CSA.

    He had been in Congress before the Civil War, and had even been a friend of Abraham Lincoln. He was later elected to Congress in 1873 (to fill a vacancy) and served until 1882 when he was elected Governor of Georgia.

    The Amnesty Act of 1872 was a general amnesty that excluded Senators and Representatives who had served in the 36th and 37th Congress (1859-1863). Thus senators and representatives who resigned upon their States seceding were still barred from serving in Congress and other offices.

    But Stephens had not run for re-election in 1859, and thus served from the 26th through the 35th, but not the 36th sessions. Stephens could have been elected President.

    By contrast, Jefferson Davis had been a Senator until 1861, and was still barred from being elected President of the USA.

  20. @AC,

    Congress require a common election date for members of Congress, and that they be elected by district. Why shouldn’t there be common ballot access laws for Congress?

  21. HOW MANY I/R CONVICTIONS OF OLDE 1862 I/R LAW ???

    AND ITS MORE RECENT VERSIONS – ESP 18 USC 2383 ???
    —
    PR
    APPV
    TOTSOP

  22. Regarding a potential “patchwork” of state rules, that’s already the case with state-by-state ballot access rules, such as the number of signatures required on petitions, if any.

  23. BLATANT VIOLATION OF 14-1 EP CL RE BALLOT ACCESS FOR PARTISAN OFFICES –

    OLDE MAJOR PARTIES
    NEW MAJOR PARTIES
    OLDE MINOR PARTIES
    NEW MINOR PARTIES
    INDEES
    —
    SEPARATE IS NOT EQUAL 1954 BROWN V BD OF ED., 347 US 483, 495 (1954)

    N-O-T MENTIONED IN WILLIAMS V RHODES (1968) AND LATER BALLOT ACCESS CASES.
    —
    PR
    APPV
    TOTSOP

  24. HOW MANY CONFEDS BACK IN THE USA GERRYMANDER CONGRESS IN 1866 AND LATER ELECTIONS ???

    ESP EX-CONFED USA SENATORS — APPOINTED BY DONKEY GERRYMANDER HACKS IN MINORITY RULE GERRYMANDER STATES LEGIS IN EX-SLAVE STATES..

    LAST YEAR IN USA CONGRESS FOR AN EX-CONFED — 1916-1918 IN WW I ???

  25. 14-3 AMDT ENFORCED BY CRIMINAL COURT
    28 USC 3231. The district courts of the United States shall have original jurisdiction, exclusive of the courts of the States, of all offenses against the laws of the United States.
    Nothing in this title shall be held to take away or impair the jurisdiction of the courts of the several States under the laws thereof.
    —
    18 USC 2383. Rebellion or insurrection.
Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.
    —
    AND THEN CIVIL COURT
    28 USC 1331. The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
    —
    MALPRACTICE MORONS IN CO IGNORED 28 USC 3231- 18 USC 2383 CONNECTION —

    ALL SHOULD BE DIS-BARRED – ESP THE CO SUP CT HACKS

  28. I would hesitate to take ballot access out of the power of the states, and place it in the hands of the federal government. There is no reason to suppose that they won’t make it more restrictive than it is in most states now. And, it is easier to change the law in the states, than having to mount a huge effect to get Congress to change any law.

  29. And, as I pointed out in another thread, there is a definite risk that any Congress will craft a federal ballot access law that favors whichever party has control of Congress.

  30. @WZ,

    Should Congress eliminate the requirement of single member districts?
    Should Congress eliminate the uniform election date for Congress?
    Should Congress eliminate the requirement of use of paper ballots?

  31. @JR:

    Should Congress eliminate the requirement of single member districts?

    Yes. I have said before that Congress should allow multi member districts, especially in metro areas.

    Should Congress eliminate the uniform election date for Congress?

    No. That seems perfectly reasonable.

    Should Congress eliminate the requirement of use of paper ballots?

    Is there such a requirement now? IMO, states should allow voters to print out their own ballots, and print names of any “write-in” candidates on their own ballots. I think that changing technology should give states as much latitude as possible in this ares.

  32. USA REGIME E LAWS

    https://uscode.house.gov/browse/

    TITLE 2—Front Matter

    CHAPTER 1—ELECTION OF SENATORS AND REPRESENTATIVES (sections 1 to 9)

    —
    TITLE 3—Front Matter

    CHAPTER 1—PRESIDENTIAL ELECTIONS AND VACANCIES (sections 1 to 22) [2022 LAW]
    —
    ALL 3 SYSTEMS = ANTI-DEMOCRACY MINORITY RULE GERRYMANDERS
    —
    PR
    APPV
    TOTSOP

  33. @WZ,

    In 1872, Congress imposed the uniform election date and the use of paper ballots for Congress.

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