In my recent rundown of arguments raised in Trump v. Anderson, I noted that the Legislature Thereof Clause argument–that the state court in Colorado botched the interpretation of state law so badly that it mangled the legislature’s preferences (an open suggestion after Moore v. Harper)–seemed the least likely ground for the Supreme Court’s consideration. I noted Trump’s brief is internally inconsistent on this point: while Part V of Trump’s brief is dedicated to the Legislature Thereof Clause, footnote 2 argues, “A ruling that reverses the Colorado Supreme Court while remaining agnostic on President Trump’s eligibility under section 3 will only delay the ballot-disqualification fight, and there is no shortage of legislators determined to use section 3 as a cudgel to bar President Trump from the general-election ballot or from taking office if this Court leaves any wiggle room for them to do so.” (If that’s the strategy, it’s not clear why Trump even included Part V in his brief.)

But the Colorado Secretary of State may have helped revitalize the issue. In a motion for divided oral argument, the Secretary argued, “Among the issues Petitioner Trump presents in his brief are (1) whether Section 3 of the 14th Amendment precludes Colorado from excluding unqualified candidates from its presidential primary ballot and (2) whether the Colorado Supreme Court violated the Electors Clause, and (3) whether this Court should defer to the Colorado Supreme Court’s interpretation of Colorado’s Election Code. These issues implicate Colorado’s—and indeed many states’—specific state law procedures for determining a presidential candidate’s eligibility to be placed on the state’s presidential primary ballot.”

The Supreme Court granted the motion to enlarge and divide oral argument. In my judgment, this is likely good news for Trump.

First, the Secretary specifically wants to focus on (1), about this election law-related component of the proceedings. That, as I mentioned in my recent rundown, is likely Trump’s best chance of success (a prediction sure to be go wrong, of course!).

Second, the Secretary specifically wants to focus on (2) and (3), the issues after Moore v. Harper about when state courts go “too far” construing state law. I thought this would be a poor ground for reversal, but now the Secretary is specifically asking for extra time to address the issue, and the Court has agreed. It sets up one of the best opportunities to expand the scope of what the Court meant in Part V of Moore v. Harper (to the chagrin of many amici).

Last year, I noted how uniquely difficult it would be to expound upon Moore v. Harper and maybe give teeth to its claim, “We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” Finding the right vehicle for Supreme Court review would be a challenge. I explained:

First, if the fundamental problem is state courts construing state law beyond what the Legislature Thereof Clauses permit, the solution is likely not a collateral attack in the district courts but a petition for certiorari to the Supreme Court, which will, I assume, dismiss the overwhelming majority without explanation.

. . .

Third, state courts are on notice. True, it’s possible some are emboldened in the judicial terms ahead (I worry, for instance, specifically about hotly-contentious state courts in closely-contested election states that are facing changing personnel dynamics, like Wisconsin). Alternatively, they will likely explain how their decisions naturally follow from previous precedent and remain with the heartland of ordinary judicial review. . . .

Trump v. Anderson is a kind of case that avoids these vehicle issues. While the Moore issue was appealed directly to the Supreme Court here and the Court granted cert, there are several other issues, including substantive Section 3 issues, that, I assumed, would dominate oral argument and the Court’s attention. But here, the Secretary has assured the Supreme Court can give fulsome attention to Moore v. Harper. Indeed, the Secretary has expressly disclaimed interest in Section 3 substantive issues.

Additionally, while state courts as “on notice,” I found the Colorado Supreme Court’s opinion explaining jurisdiction underwhelming. (That’s no doubt in part due to a much larger focus in the opinion on substantive Section 3 issues rather than the state law jurisdictional hook, which attracted some but proportionately less attention.) Indeed, I filed an amicus brief in the Colorado Supreme Court in support of neither party very skeptical (and still skeptical) that state law permits jurisdiction.

Colorado law, enacted by initiative in 2016, provides, “Except as provided for in subsection (5) of this section, each political party that has a qualified candidate entitled to participate in the presidential primary election pursuant to this section is entitled to participate in the Colorado presidential primary election.” It was the first opportunity for the Colorado Supreme Court to expound on the meaning of this statute. Despite this being guidance to which political parties are entitled to participate, the Court (1) pulled the word “qualified” out to give it an independent constraint on the party; (2) argued that “pursuant to this section,” a state law reference, also by reference incorporated federal qualifications; (3) saw that reference elsewhere, “it is the intent of the People of the State of Colorado that the provisions of this part 12 conform to the requirements of federal law and national political party rules governing presidential primary elections,” as a reference to require candidates to meet Section 3 qualifications, not a reference that a semi-open primary conform with the associational rights of voters; and (4) ignored the structural limitations that would seem to preclude state courts from hearing these claims, such as the fact that decisions must be rendered within 48 hours after a hearing, a suggestion that fact-intensive disputes of complicated constitutional law issues are not appropriate for the proceedings.

Now, just because it’s wrong on state law grounds (and dissenting justices in Colorado made the argument far more ably than I can) doesn’t mean the Court should reverse under the Legislature Thereof Clause. Wendy Weiser and Tom Wolf blogged here about their brief, “It’s all standard statutory interpretation, using canons of construction and other rules of thumb that are part of every court’s toolkit.” And while I found the judgment in Colorado wrong-headed on this point, I didn’t address the issue in my amicus to the United States Supreme Court–either that it ran afoul of the Legislature Thereof Clause or that despite being wrong it still passed muster under the Legislature Thereof Clause. In part, I assumed the issue was not attractive to the Court. (And in part, I’m still puzzling through what the language in Moore v. Harper means.)

But the Secretary’s intervention at oral argument increases the likelihood that the topic gets an airing on February 8. Of course, we’ll see how Trump handles the argument, as he argued it’s not a preferred basis for reversal. And many briefs cautioned the Court that kicking the can down the road–which a decision on the Legislature Thereof Clause would do–would be ill-advised. But this case has already had so many twists and turns, what’s another one days before oral argument….