Â鶹ӰԺ

Former President Donald Trump will appear on Colorado’s ballot—and every state’s ballot—after the Supreme Court of the United States ruled states cannot remove his name over his actions leading up to the Jan. 6 attack on the Capitol. 

The ruling was unanimous and reversed the Colorado Supreme Court, which determined Trump could not be on the ballot based on Section 3 of the 14th Amendment. Today’s ruling did not analyze or determine whether Trump engaged in insurrection. 

President Donald Trump speaking at his 2017 inauguration. Photo by U.S. Marine Corps Lance Cpl. Cristian L. Ricardo via .

Professor Doug Spencer is an expert in election and constitutional law and gives his take on the ruling and what it means for the remainder of election season and beyond. 

The Supreme Court didn’t touch the issue of insurrection. Did you expect that?

I did. The Supreme Court really didn't ask any questions about the underlying facts of the case. And in one sense, that's because they probably knew in advance they weren't going to say anything about it. But on the other hand, it does leave all of those lower court findings in place. So it's still true that a state court in Colorado found Donald Trump engaged in insurrection and that finding was affirmed by our state Supreme Court. 

And that is an important data point as we move forward thinking about other litigation like the special counsel’s trial and challenge against Trump for engaging in an insurrection. There is now a building set of data points for the Jan. 6 commission that Congress held—data points of courts deciding that Trump engaged in insurrection. Colorado did it and a trial court in Illinois found the same thing. So as it starts moving up the chain, it's harder and harder for Trump to claim that he’s never been charged or never been found guilty. The data points are building against him.

Justices will hear arguments on Trump's immunity claim in that special counsel case. How do you see that playing out? 

Today’s opinion came 25 days after the oral argument. So, going forward, we might be able to say the Supreme Court has the ability to decide a really controversial case about Donald Trump in 25 days. 

His oral argument in the immunity case is the week of April 22. And if we get something of a similar timeline, we would have a resolution in that case by May 17, which is important, because a mid-May decision by the Supreme Court would still leave time for a criminal trial before the November election. And if they start dragging their feet, then it's not because they don't have the ability to act quickly. We learned from this case that they can do so.

Professor Doug Spencer, Colorado Law. 

Why did the court’s three liberal justices express concern the court was too detailed in its opinion? 

It's really telling that the court was unanimous. I think that was something that the Chief Justice worked on and really wanted to get unanimity because it signals that the law is very clear, but also, helps turn the temperature down, as Justice Barrett suggested, on a very politically divisive issue. 

At the same time, there's a natural follow up question—if Colorado can't do this, or if an individual state can’t do this, who can? There’s a divide about that. Four of the justices said there's no need to resolve that now. It's enough to say Colorado can't do that. Five justices said Congress should be the body to do this. The three liberal justices said putting the responsibility on Congress then closes off other avenues that could be available. For example, imagine a federal court criminally finds Donald Trump engaged in insurrection. But now because of the Supreme Court's opinion, they're not able to disqualify him from the ballot as one of his punishments. They have to wait for Congress to say they can do that. So those other paths to hold Donald Trump or future insurrectionists off the ballot have been closed. 

But at that cost, we do get a benefit, which is there's clarity about what to do. And the clarity is that Congress needs to act and I think there is some value in the Supreme Court providing that clarity.

Do you think candidates for office, beyond presidential candidates, will now campaign on this? 

I think Congress has tried to avoid the issue as long as possible. They didn't need to act in advance because the state courts might step in, the federal courts might step in. Now, the Supreme Court's put them on notice and said the ball is in your court. So all of the effort to disqualify Trump from the ballot is now going to move towards Congress, which means people will lobby Congress, people will make donations based on this, I think candidates will start speaking about it. And there's going to be a lot of pressure from members of Congress to at least say something about their position, if not, for the leadership to put some kind of bill forward for a vote whether or not it passes.

What does this mean for voters—from now all the way through November? 

I don't think that this decision has any bearing on Super Tuesday. I think the fact that Donald Trump's name is already on the ballot means that people were likely to vote for him, regardless of whether this case was decided today or not. He'll be on the ballot in all 50 states. Unless Congress steps up and does something, then he will remain on the ballot. 

However, it’s worth pointing out that the Court said Congress needs to act first. But they have to act in a particular way. They have to pass a law that says they're disqualifying Trump from the ballot. This is important because if Trump wins the electoral college this upcoming November, but Congress decides not to count those votes because they think there’s grounds for disqualification—that’s not passing a law. It seems like the Supreme Court today has foreclosed that opportunity, even though Congress arguably has the authority to do that under the 12th Amendment. And so there remains some lack of clarity about what could happen after the election, because we want to avoid another Jan. 6.