The U.S. Supreme Court's 9-0 decision Monday that former President Donald Trump will appear on Colorado's ballot may well heighten Democrats' possible backup plan: refusing to certify his Electoral College win should he win the Republican presidential nomination and then prevail in November's general election.
In a per curiam decision \-- meaning all the justices agreed on the result -- the court reversed the Colorado Supreme Court's December ruling removing Trump, the GOP presidential frontrunner, from the ballot.
The state court concluded in a 4-3 decision that the former president participated in an “insurrection” on Jan. 6, 2021, and therefore was disqualified from holding federal office under Section 3 of the Constitution’s 14th Amendment.
However, the U.S. Supreme Court said Monday that provision leaves it up to Congress to pass enabling legislation in order to determine who is an insurrectionist, and it has done so in federal statute.
Trump has not been charged with, much less convicted of, taking part in an insurrection.
The Supreme Court said that if states were able to make their own determinations about who engaged in an insurrection, "Conflicting state outcomes concerning the same candidate could result not just from differing views of the merits, but from variations in state law governing the proceedings that are necessary to make Section 3 disqualification determinations."
"Some States might allow a Section 3 challenge to succeed based on a preponderance of the evidence, while others might require a heightened showing," the court continued.
"Disqualification might be possible only through criminal prosecution, as opposed to expedited civil proceedings, in particular States," it said. "Indeed, in some States — unlike Colorado (or Maine, where the secretary of state recently issued an order excluding former President Trump from the primary ballot) — procedures for excluding an ineligible candidate from the ballot may not exist at all."
The justices contended the result could be that candidates could be ineligible in some states but not others for the same conduct.
"Nothing in the Constitution requires that we endure such chaos — arriving at any time or different times, up to and perhaps beyond the Inauguration," they wrote.
However, while the Supreme Court has ruled that neither Colorado nor any other state can keep Trump off the ballot, the Democrats might have a potential backup plan.
Democratic lawmakers told The Atlantic's' Russell Berman in a story published Feb. 23 that if the Supreme Court does not rule on the issue of whether Trump engaged in an insurrection, they might decide on their own that he did and refuse to certify the election if he won.
In their decision in favor of Trump, the justices pointed to 18 U.S. Code § 2383 as a measuring line for insurrection. He has not been charged with that crime.
Berman noted in his piece that if the court took that route, it would put Democratic lawmakers looking for political cover in a tough place.
It will be the new Congress that votes on certifying the Electoral College results in January 2025.
Republicans hold a razor-thin majority in the House, but it could easily flip back to Democratic control in November’s election. Democrats have a 51-49 working majority in the Senate but face a tough election map this fall. That said, it is possible they could keep the upper chamber.
Only a simple majority is needed to sustain an objection to certifying an Electoral College vote.
“In interviews, senior House Democrats would not commit to certifying a Trump win, saying they would do so only if the Supreme Court affirms his eligibility,” Berman wrote.
"Contesting a presidential election by claiming that the winner is ineligible, however, has no precedent,” he pointed out.
Democratic lawmakers have contested every Republican presidential win going back to 2000, arguing the elections were somehow corrupted in how they were conducted.
Their refusal to certify a Trump win this fall would be based on their conclusion that he is an insurrectionist and therefore ineligible under the 14th Amendment.
“In interviews, senior House Democrats would not commit to certifying a Trump win, saying they would do so only if the Supreme Court affirms his eligibility,” Berman wrote. For example, Democratic Reps. Adam Schiff and Eric Swalwell, both of California, took this view.
Asked what he would do if the court declined to answer the question of Trump’s eligibility, Schiff responded, “I don’t want to get into the chaos hypothetical.”
Former House Majority Whip James Clyburn of South Carolina also demurred when asked how he would vote in such a scenario. The veteran congressman only said concerning Trump, “I think he’s an insurrectionist.”
Rep. Zoe Lofgren of California said Trump is “clearly ineligible” and she “might be” one who would vote not to certify him the winner of this year's election.
House Minority Leader Hakeem Jeffries, who likely would become speaker if Democrats were to take the House in November, did not respond to Berman’s inquiries.
Would Democrats be so brazen as to vote against certifying a Trump win, especially after all their talk of Republicans undermining democracy following the 2020 election?
Let's hope not, but based on all their antics in the courtroom and otherwise this election cycle, it's conceivable.
