I have written this piece for Slate. It begins:
After oral arguments at the Supreme Court in Trump v. Anderson, a grand bargain that appears to make practical sense as a compromise is beginning to come into view: the Supreme Court unanimously or nearly so holds that Colorado does not have the power to remove Donald Trump from the ballot but in a separate case it rejects his immunity argument and makes Trump go on trial this spring or summer on federal election subversion charges. Depending upon how the court writes its opinion, however, it could leave the door open for chaos in January, if Donald Trump appears to win the 2024 election and a Democratic Congress rejects electoral college votes for him on grounds he’s disqualified. Justice Ketanji Brown Jackson, however, may have seen this danger and found a way around it. If the court’s going to side with Trump in the disqualification case, it should embrace Justice Jackson’s rationale, even if it is not the most legally sound one….
And yet, the rationale for keeping Trump on the ballot that seemed to be gelling at Thursday’s oral argument could open up the door to something politically dangerous down the line. Suppose the Supreme Court holds that the unique federal interest in the presidential election (or all federal elections) means that states cannot use disqualification under the 14th Amendment to remove a candidate from the ballot, perhaps absent some congressional authorization. Such a ruling would still allow Congress, our national body, to disqualify Trump.
And such congressional disqualification might not come before the election but instead come after. As I spelled out in a Supreme Court amicus brief supporting neither party filed with Professor Edward Foley and GOP lawyer Ben Ginsberg, there is a big risk of disenfranchisement and chaos if the court issues a ruling that punts on the question of whether Trump is disqualified and leaves the question to Congress. If Trump appears to win the election in November and Democrats control Congress, there will be a serious effort to disqualify Trump when electoral college votes are counted in January, something that would risk political instability and even violence. Kicking the can down the road in this way is dangerous.
And perhaps this is why Justice Kentaji Brown Jackson appeared to be embracing what I consider to be a weak textual argument that Section 3 of the 14th Amendment does not apply to the presidency. She noted that the president is not named explicitly as one of the offices for which disqualification applies in the Amendment, and said that the history showed that the amendment was really aimed at what was going on in the Southern states after the civil war, where local authorities were more likely to be confederates. The argument is weak because it would be an absurd rule to disqualify insurrectionists from serving in every office in the land except for commander-in-chief, an issue that even Trump’s lawyer Jonathan Mitchell conceded at oral argument. It’s also weak as a textual matter, because the disqualification provision applies to “offices” of the United States, which should include the presidency.
And yet, the Justice Jackson approach has great practical appeal. A ruling along Justice Jackson’s lines would say that disqualification does not apply to the presidency at all, which would make it exceedingly unlikely that congressional Democrats would try to not count any electoral college votes for Trump cast in November….