When might the Supreme Court weigh in on Section 3 challenges to Trump’s access to the ballot?

The drumbeat for several months has been, “Whatever happens with these state-level challenges to Trump’s candidacy, the Supreme Court will have the final word.” That’s possible, and even likely, but not guaranteed. And if (an if, not a when) the Court does weigh in, when might it do so? Context matters. Here, I’ll sketch out a few paths as they stand today, in early November 2023.

1. The most likely first paths forward come from the more serious state-based claims filed in Colorado, Minnesota, and Michigan. Federal court seems an unlikely avenue so far, as most claims have been (rightly) thrown out as plaintiffs lack standing.

Each of these states offers different ways to get to the Court, and different approaches the Court might take.

2. Let’s start with Minnesota. It’s the state where a court has (or at least appears to have) original jurisdiction to hear the claim, so there’s no delay for layers of appellate review. The court heard oral argument November 2. But it only heard argument on pure legal issues–it did not consider any factual disputes. This is important in a moment (see (a)(iii) below…).

a. Suppose the Minnesota Supreme Court moves quickly at, by Thanksgiving, issues a decision dismissing the case (a position it appeared inclined to do at oral argument, although one never knows)–that is, permitting Trump to appear on the ballot. The grounds matter.

i. If the state court tosses on some state law basis, such as a state version of the political question doctrine, state judicial discretion to decline to hear certain cases, or so on, the case couldn’t go the the United States Supreme Court, because there’d be no federal ground for the Court to review the case, and we’d have to wait for another case. (This is what happened in Arizona in 2022.)

ii. If the state court tosses on some federal law basis, like reliance on Griffin’s Case or an understanding of the political question doctrine (two of the positions that seemed to have the most traction at oral argument, with all of the usual caveats), the Supreme Court could hear the case. It could also decide the case on this basis or on any other basis in the record.

iii. But, the question is whether the Court would weigh in if (2)(a)(ii) applies.

On the one hand, my longstanding assumption has been that the Court would only hear the case if the state court excluded Trump. My instinct is that the Court would seek to avoid this case as long as possible–and a decision that preserved, for lack of a better term, the “status quo” (e.g., the candidate appears on the ballot as he does in most other states) would not be a basis for the Court to step into the fray.

On the other hand, the Court could opt to rip the bandage off and take the case even if the court dismissed the case and said Trump should remain on the ballot. That said…

iv. I think if it does take the case in this posture, it would be to affirm the Minnesota Supreme Court. And that means setting a precedent for all these other cases to shut them down. There are different avenues it has at its disposal (Girffin’s Case is a tempting one, although I think Ron Fein did an outstanding job at oral argument in the Minnesota Supreme Court explaining why it doesn’t fit the way Trump’s attorneys think it does while also not arguing that it was necessarily wrongly decided). But if the Supreme Court takes it, it would take it to shut down these Section 3 cases.

Why? Because Minnesota split this case into two parts.

If the United States Supreme Court takes this case and reverses to say, “No, you got it wrong, this isn’t a political question, or Griffin’s Case doesn’t apply,” etc., the Court sends it back to… a factual hearing. A factual hearing happening elsewhere already (e.g., Colorado). And a factual hearing (e.g., did Trump “engage[]” in insurrection?) that might make any judgment on the legal question, on the one hand, moot, or, on the other hand, require the Court to hear the case later after the facts come down. And that is, in the lingo, a “vehicle problem” with this posture. It’s not ripping the bandage off if you’re going to see the case a second time, or if you never needed to decide the case in the first place.

b. Suppose the Minnesota Supreme Court moves quickly at, by Thanksgiving, issues a decision upholding the petitioners ‘ understanding of the law. That means, the case proceeds to a second stage, of factual development (perhaps to a special master to gather and determine facts).

i. That slows this case significantly, to factual development, with later findings of fact, and later review by the state supreme court. The court needs to resolve the case by early January, as the Secretary of State represented, to ensure ballots can be printed. The timeline is tough.

ii. Could Trump appeal this finding to the United States Supreme Court? Probably not, but it’s not guaranteed.

This holding is not a “final judgment,” because there’s still more of the case to be resolved, and he could win (e.g., by a factual finding that his conduct did not rise to the level of engaging in insurrection).

The Supreme Court in rare cases will hear cases that haven’t gotten to final judgment, simply to shut down additional litigation. But this is a heavy lift. The applicable exception in a case like this is a fairly malleable category (one that has been heavily criticized, especially by more conservative justices, over the years):

Lastly, there are those situations where the federal issue has been finally decided in the state courts with further proceedings pending in which the party seeking review here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court, and where reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action, rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state proceedings still to come. In these circumstances, if a refusal immediately to review the state court decision might seriously erode federal policy, the Court has entertained and decided the federal issue, which itself has been finally determined by the state courts for purposes of the state litigation.

It is possible a majority of the Court is interested in taking the case on this basis, if it is inclined to reverse and conclude that Section 3 does not apply in this case. It would need to explain how the state court’s decision “might seriously erode federal policy.” That is malleable enough to conclude that the efficacy of a presidential primary election is at stake, but it is, I think, still a heavy lift for Trump, and one more complicating factor to any speeder appellate resolution.

3. What about Colorado? A trial court got through five days of hearing. It has “paused” the hearing for a couple of weeks, and closing statements will take place around November 15, with a potential timeline for a decision on the merits–both law and fact–around November 17.

My sense is the trial court will be inclined to exclude him from the ballot–a momentous holding in its own right, to be sure, but one that is short lived as an immediate appeal will happen. That appeal (likely directly to the Colorado Supreme Court), with another round of briefing, oral argument, and a decision, will happen in short order. Like Minnesota, Colorado has a pretty hard deadline of early January before it must start printing ballots.

If that’s the case, the Colorado Supreme Court may well be in a position close to the Minnesota Supreme Court if 2(b) proceeds above–the Minnesota Supreme Court in a round of factual development as the Colorado Supreme Court considers the appeal from the trial court (whatever decision the trial court reaches). In other words, we don’t know much more right now, but either might happen in early December–or tee up around the same time.

4. The Michigan court of claims case is proceeding a bit more slowly–briefing is wrapping up, oral argument may happen in the very near future, and additional complexities from this court of limited jurisdiction may arise. It seems to be operating a step behind the Colorado briefing, but we’ll see how it proceeds. (The same could be said in New Jersey of a state court case pending there, too, with additional ripeness complexity.)

We are starting to get some clarity about when the Supreme Court might get its first (serious) shot at seeing one of these cases. It could be soon. And in various postures, the likelihood of the Court actually taking the case may vary, as might the direction of the Court’s decision.

Share this: