On March 4, the U.S. Supreme Court released its opinion in Trump v Anderson, 23-719. This is the Colorado ballot access case involving former President Donald Trump. Read it here. It is only 13 pages long and is probbly written by the Chief Justice, although it is unsigned. Justice Amy Comey Barrett wrote a one-page concurrence, and there is a six-page concurrence by Justices Sotomayor, Kagan, and Jackson.

All nine justices agree that states cannot enforce Section Three of the Fourteenth Amendment. The majority opinion says that only Congress can enforce it. The four concurrences agree that states cannot enforce Section Three, but they say there was no need for the majority to also hold that courts can’t enforce it either.

Nothing in the opinions discusses state power to enforce other qualifications to hold the presidency or to run for president. Nothing in the opinions mentions the authority of political parties over their own nomination process. Nothing is said about whether Trump engaged in insurrection. There is a general philosophy expressed that it is undesirable for states to adjudicate section three because then there would be a patchwork effect. “State-by-state resolution of the question whether Section 3 bars a particular candidate for President from serving would be quite unlikely to yield a uniform answer consistent with the basic principle that ‘the President…represents all the voters of the Nation.'”

Page twelve says, “The ‘patchwork’ would likely result from state enforcement would ‘sever the link that the Framers found so cricical between the National Government and the people of the United States’ as a whole.'” The opinion goes on to criticize a situation in which a presidential candidate is on the ballot in some states but not all of them. This part of the opinion will help to invalidate severe ballot access restrictions that apply to presidential candidates, aside from Section Three matters. Page two of the three-justice concurrence also expresses this point.

As a result of the decision, which relies partly on Anderson v Celebrezze and partly on U.S. Term Limits v Thornton, the influence of both of those decisions is enhanced. It is likely that this opinion dooms any effort by supporters of term limits for Congress to get that 1995 ruling overturned, even though it was 5-4 back in 1995.

The Georgia Libertarian Party lawsuit Cowen v Raffensperger, n.d., 1:17cv-4660, is still alive. It challenges the Georgia requirements for a candidate for U.S. House to get on the ballot. Except for the nominees of parties that polled 20% for president, the procedures are so severe, they have not been ever used by a minor party, and were last used by an independent in 1964. Although the Eleventh Circuit upheld the law last year on First Amendment grounds, the part of the case concerning Equal Protection is still pending. That part of the case case had lost in U.S. District Court, but three months ago but the party asked for reconsideration, citing a factual error in the judge’s last decision. The request for rehearing was filed December 4, so it has been pending for three months.