Like Rick, I’ve argued repeatedly here on ELB as well as earlier this week at Common Ground Democracy that the merits of whether or not Trump is disqualified from the presidency again by section 3 of the Fourteenth Amendment should be resolved before voters cast their ballot and not a matter for congressional consideration on January 6, 2025 if Trump wins an Electoral College majority (or no candidate receives 270 or more electoral votes).

Thus, I wholeheartedly endorse Rick’s call for the U.S. Supreme Court to grant the pending petitions and decide as expeditiously as possible the merits of the section 3 issue. As Rick says, this means rejecting the argument that the political question doctrine precludes judicial consideration of the merits. But it also precludes some of the other arguments raised in Trump’s cert petition. As I see it, these additional arguments made by Trump as alternative grounds for reversing the Colorado Supreme Court decision (and requiring dismissal of the plaintiffs’ challenge to Trump’s eligibility–and any similar challenges in other states, like Maine) would all be procedural non-merits decisions that would leave the question of section 3’s applicability to Trump open for Congress to consider on January 6, 2025:

1. The argument that no state may create a procedure for adjudicating a section 3 disqualification claim without prior authorization from Congress, which I believe is analytically distinct from a claim that the political question doctrine applies in this context;
2. The Moore v. Harper argument that the majority of the Colorado Supreme Court so misconstrued the applicable state statutes as to violate the authority of the state legislature granted in Article II of the federal Constitution;
3. The argument that Colorado judicial proceedings adjudicating the section 3 issue violated due process (to the extent that Trump is raising this claim in the all-encompassing single Question Presented of his cert petition–that the Colorado Supreme Court erred in order him removed from the ballot); and
4. The argument that Trump can’t be removed from the ballot because section 3 applies to holding office rather than running for office.

By contrast, Trump’s arguments that section 3 does not apply to the presidency and that, even if it did, he did not “engage” in an “insurrection” within its meaning are claims that go to the merits. These are the issues that should form the basis of the Court’s ruling on the merits, in order to settle the constitutional question of whether or not section 3 disqualifies Trump from returning to the presidency, so that the constitutional issue does not remain open for Congress to address for itself in the event that Trump wins in November.