I have long treated Trump v. Anderson (and related cases) as an election law case first, and as a separate substantive constitutional law (or Section 3) case second. I’ve long had this view on these qualifications cases, stretching back a decade, when I was looking at the natural born citizen cases with Barack Obama, John McCain, and Ted Cruz. There is no question that these disputes are about ballot access. And Trump v. Anderson has the potential to be the most significant ballot access case in over 30 years.

That said, it’s been astonishing, to me, at least, that we have seen very little effort for this case to be litigated primarily as an election law case. (For instance, we’ve seen essentially no conversation about the Anderson-Burdick test here.) But it seems increasingly likely, to me, that if the Supreme Court rules in Trump’s favor (and by if, the likelihood seems to be declining), it will be on an election law ground related to ballot access rather than a substantive Section 3 analysis.

If one goes back to see how Madison Cawthorn and Marjorie Taylor Greene handed the challenges to their eligibility back in 2022, it was a very different strategy. The original challenges, citing Section 3, were filed in state court. The defendants then went on the offensive. They filed collateral cases in federal court; they secured some delays and temporary victories; they secured sympathetic opinions from judges at the courts of appeals that leaned into some of their arguments on election law issues on the power of Congress to judge qualifications of its members, squarely the kind of election law issue that is a threshold to any substantive Section 3 analysis.

Trump, however, has handled the cases very defensively. He never filed collateral proceedings in federal court on election law issues. He’s largely settled into framing the case along the lines the plaintiffs have framed it, as a constitutional law case under Section 3.

So this case has come as something of a different approach, in the defensive posture, with very little election law emphasis, and, perhaps unsurprisingly, the cases have gone poorly for Trump. He lost on the merits in the only two jurisdictions that got to the merits, Colorado and Maine. In other places, courts kicked the can down the road during the primary, or tossed cases for lack of standing in federal court. The few other places where challenges are pending, we have no real idea about their views of the merits, because those courts there are waiting to see what the Supreme Court here does about the merits.

That brings us to this case. It would seem that this significant ballot access dispute would attract a lot more election law attention. But it has not. Indeed, very few election law scholars have weighed in and the amicus briefs, and those that have with in support of neither party, reflecting some hesitation, to some degree, and some questions about the underlying merits. (Disclosure: I’m one of them.)

But I want to focus on Trump’s arguments in the merits brief. And I think it seems increasingly likely (in my judgment, anyway) that while this case has not been principally litigated as an election law one, it might end up that way, if the court is inclined to rule in Trump’s favor. But if it does not move in that direction. I think it’s going to be very difficult for Trump to succeed on the merits, and it seems increasingly likely that the Court will hold that he could be barred from the ballot on the merits of Section 3. Indeed, watching the litigation unfold, my sense today is that Trump’s chances of success are lower than they’ve ever been.

So let’s look at Trump’s brief. He raises five principal arguments. And as you move through those arguments, you see the difficulty for him as these issues have been narrowed.

The first is the argument that the Colorado Supreme Court exceeded the bounds of its authority in interpreting state statute and interpreted it so poorly that it ran afoul of the Legislature Thereof Clause. That seems unlikely, for a variety of reasons, not the least of which is that Trump’s own opening brief has a footnote that tells the Court it shouldn’t even decide the case on this basis, but on a more global basis. I doubt there is much appetite for the court to address this issue of statutory interpretation, which dresses only a jurisdictional hook, rather than the underlying merits in the case. (Disclosure: I thought the Colorado Supreme Court got the statutory interpretation question wrong, as I suggested in a brief I filed in state court, but to say that it went so far as to run afoul of what the court dictated in Moore v. Harper is a different matter.)

So we’re down to four arguments. One of those arguments is to suggest that Trump did not engage in insurrection. Very few of the amicus briefs in his support grapple with this issue. And that’s probably because these fact intensive disputes that get into the weeds of Trump’s state of mind, what he was rage tweeting on the days leading up to January 6, 2021, are probably not the stuff the Court wants to dwell on in this case. I think the messy questions of fact in addition to the contentious nature of them make it an unappealing avenue for the Supreme Court’s review.

So we’re down to three. He raises a question in only a couple of pages that Congress has a role to play here. But unlike many of the traditional arguments that have been raised about the Griffin’s Case, the argument is a different one–that Congress has already legislated in this area, and therefore states are preempted from enforcing in their own ways. Now, one problem with the way I’ve just summarized this argument is that this argument never uses the word “preempted” (perhaps because the attorneys are not persuaded themselves of the concept of preemption in the first place and sticking with a more academic argument than precedent-based argument). But it sets its own problems as to how this argument would be applied in this case, given that the vestiges of enforcement of Section 3 are purported to be a statute that was reenacted in the mid 20th century, but that was originally enacted actually before ratification of section 3. (There’s a separate blog post to be had on this, frankly.)

Now we’re down to two arguments. The one that Trump leads and spends the most time on, about whether the presidency is office under the United states, has certainly had its airing in the public domain. I don’t want to overstate my confidence level in the court reaching decisions on this question. But my sense, and it is only my sense, is that this will not be a terribly attractive mechanism for the Court’s orientation to original public meaning rather than suggesting unique legal terms of art should control. But perhaps I’m entirely wrong, and readers can judge for themselves the strength and the likelihood of the arguments success

What I’ve just described gets us down to one last argument. And it’s not really a substantive Section 3 argument, although it does relate to some of the language in Section 3. That argument relates to the question about whether or not states, in their ballot access disputes, can effectively remove candidates and judge their qualifications months in advance of an election, when it is potential that those candidates could later become eligible to serve (a distinction elsewhere labeled as the eligibility to seek office and the eligibility to hold that office).

At this point, you can see that the last argument standing, at least from my rough run-through if the arguments (if you accept my framing of the likelihood of success–and you may not!), is one that suggests is election law case, or at least the election law argument is most likely to succeed. Indeed this is the argument that Jones Day, representing the NRSC, leaned very heavily into this argument. And it’s an argument very similar to the one Judge Branch raised in the Eleventh Circuit in Greene.

Section 3 scholars spend very little time on this point, because it is a question of enforcement of Section 3 through the particular means of ballot access rules. And it really leans heavily on questions like Chiafalo, Term Limits, and other kinds of ballot access questions.

For my part, I have mixed thoughts on this issue. On the one hand, states have for a very long time enforced qualifications of candidates at the ballot access stage. And this is a matter of state law. So there are no disputes or, or few to be had, if those states have enforced these mechanisms in advance of the election. Candidates must demonstrate eligibility as a matter of state law, and that’s that. On the other hand, I’ve argued quite vociferously, and somewhat of a lonely view, that states have absolutely no role in judging qualifications at any time for members of Congress. I’ve argued that the textually demonstrable commitment of the constitution gives that power exclusively to Congress, and no states can do so and step in and try to limit the names that appear on the ballot and restrict the people’s free choice period now, that argument did get a little traction in federal courts last election cycle, but I certainly concede it is not the consensus.

Now I’ll let presidential elections are something in between, and that makes it much harder. It is complicated by state power to direct the manner of appointing presidential electors, and by Congress’s power to later (potentially) reject votes. Part III.B of my brief gets at this ambivalence.

Some reaction has suggested this is a fanciful distinction, the distinction between eligibility to seek office and the eligibility to hold office. But this is an old puzzle. Here’s how McCrary’s important election treatise in 1897 summarized the discussion in some states:

As we have seen, the question of eligibility to be elected to or to hold an office is generally to be determined by the construction of some statutory or constitutional provision fixing the qualifications therefor. But cases have arisen where both the Constitution and statute are silent. Thus, in Wisconsin, there is no statutory or constitutional provision to determine whether an alien may be elected to or hold office. In State v. Smith, the question arose whether an alien could hold the office of sheriff. In that case the defendant was an alien, and had entered upon the discharge of the duties of his office without having become an elector, which he might have done by declaring his intention to become a citizen. Up to the time of the commencement of the action he had not become a voter, so that the case presented simply the question of the right of an alien, not a voter, to hold the office. The Court held that he could not hold it, and the decision was put upon the ground that a person cannot lawfully hold such an office unless he is a qualified elector of the State. The Court, by Dixon, C. J., said: “It is an acknowledged principle, which lies at the very foundation, and the enforcement of which needs neither the aid of statutory nor constitutional enactments or restrictions, that the government is instituted by the citizens for their liberty and protection, and that it is to be administered and its powers and functions exercised only by them and through their agency.” This case, however, went no farther than to hold that a person not an elector is ineligible, in the absence of any statutory or constitutional provision on the subject, to hold an office. It left open the question whether a person not an elector may, in the absence of such statutory or constitutional provision, be elected to an office, and be entitled to enter upon and discharge its duties, provided his disability is removed before the commencement of the term for which he is elected. This latter question, however, did arise in the same State, in the more recent case of State v. Murray and was decided affirmatively. In this case the distinction is clearly made between ineligibility to hold an office and ineligibility to be elected to an office for a term to commence in the future, and for the duties of which the person chosen may qualify himself before the term begins. It may here be added that it has been the constant practice of the Congress of the United States since the rebellion, to admit persons to seats in that body who were ineligible at the date of their election, but whose disabilities had been subsequently removed. [The contrary rule has been adopted by the Supreme Court of Minnesota, which holds that where one is ineligible to an office at the time of his election, he cannot hold the office, even though, after being so elected and before the official term begins, the disqualification is removed.]

Ahead of next week’s argument, I’m watching to see if this becomes much more of an election law case when so much of the litigation has been a Section 3 case thus far.