Professor Marty Lederman has significantly expanded his analysis of the Anderson v. Celebrezze issue in Trump v. Anderson over at Balkinization, here. As ELB readers may recall, I flagged the Anderson issue back in October, and my briefing in this case has offered some hesitant suggestions to think about the framing (without coming down on one side or another). Professor Lederman offers a much more fulsome defense of this legal hook as the best way to decide the case, which results in reversal of the Colorado Supreme Court. (Indeed, at oral argument yesterday, Justice Kagan read from Anderson v. Celebrezze on the bench.) He points to the burdens on Colorado’s voters, and on the state and national parties, for the removal of a candidate’s name from the ballot. That is in stark contrast, he notes, to candidates who are indisputably ineligible.

He also makes this point on the Colorado Secretary of State’s justifications of the state’s interest:

Colorado Secretary of State Griswold, in her brief, flags two additional possible state objectives.  First, she writes (p.26) that an exclusion of Trump from the ballot “ensures voters are not disenfranchised by voting for candidates who are ineligible for office,” which “allows voters to accurately weigh their choices before casting a vote.”  This rationale is problematic for at least three reasons.  First, it’s not a justification that the decision-maker, the Colorado Supreme Court, relied upon.  Second, it assumes that Trump is ineligible just because the Colorado Supreme Court decided that he is—which presumes the answer to the question that other actors would have to eventually determine if Trump were to actually be prevented from taking the oath of office.  Third, if the state were worried that its voters will be ignorant of the mere possibility that other actors will (as Colorado cannot) prevent Trump from taking office or will remove him from office, it can address that problem by educating voters about the possibility rather than by paternalistically preventing them from choosing to vote for Trump with full knowledge of the risks.

Secretary Griswold also writes (id.) that “perhaps most importantly,” such a ballot exclusion “avoids the turmoil of an ineligible candidate winning an election for an office that the candidate is constitutionally barred from holding.”  Again, this isn’t a justification that the Colorado Supreme Court relied upon.  Moreover, it’s hard to see how Trump’s exclusion from the ballot would serve to “avoid” any turmoil of the sort Griswold describes, because the Republican Party will nominate Trump anyway, and because whether he’s prevented from entering office will depend on the decisions of others (voters, electors, Congress, etc.)—in other words, Colorado’s actions here won’t do much to affect that prospect, whereas they will cause serious harms to the fundamental constitutional rights of Trump supporters and the Republican Party (and possibly cause turmoil of its own making, as well).

The Court seemed to be grappling with these concepts, and in particular the second point to the first point raised here: that is, “it assumes that Trump is ineligible just because the Colorado Supreme Court decided that he is—which presumes the answer to the question that other actors would have to eventually determine if Trump were to actually be prevented from taking the oath of office.” The Secretary tended to frame the question as to whether the state has the power to exclude an insurrectionist from the ballot; but the better framing is whether the state has the power to ascertain whether the candidate is an insurrectionist, and, if so, keep the candidate off the ballot. Relatedly, the statements at oral argument that federalism “messiness” (probably one of the worst words the Secretary could have used at oral argument) means that states can continue to do their own things until some other federal actor steps in–or until the Supreme Court is asked to, and tasked with, resolving factual and legal disputes among states, suggests the state interest in being the first mover is much lower than in other cases (e.g., undisputed eligibility).

The whole post is worth reading after yesterday’s argument, and it’s another reminder that this case might look quite different if litigated through an election law lens than the Section 3 framing it’s received for months.

One more wrinkle, and this was an argument floated repeatedly by Justice Barrett at oral argument that Professor Lederman sharply notes:

It’s entirely possible, I suppose, that the Court might announce a broader, structural “federalism” limitation on the power of states to use their ballot regulations to exclude some or all federal candidates on eligibility grounds (or perhaps only on Section 3 grounds?), and in so doing invoke Anderson v. Celebrezze and other election law cases without necessarily framing the decision specifically in First Amendment/voting rights terms.  Justice Barrett, in particular, hinted at such federalism constraints by invoking analogies to M’Clung v. Silliman (1821) (state courts can’t issue writs of mandamus against federal officials) and Tarble’s Case (1871) (a state judge lacks jurisdiction to issue a writ of habeas corpus for the discharge of a person held by a federal official).  As I wrote in this post, citing M’Clung, it’s common ground that a state lacks legal authority to actually enjoin a disqualified federal official from holding office, or to remove him or her from such office; that a state court couldn’t issue an injunction to prohibit someone from taking federal office or to order that person to vacate the office (or order another federal actor to remove the allegedly ineligible person); and that state police can’t arrest someone purporting to hold a federal office (e.g., a Senator, a Representative in the House, a civil or military officer in the federal executive branch, a federal judge, or … a President or Vice-President) on the ground that the state has determined that that person is acting in derogation of Section 3 or some other constitutional limitation.  The Court might conceivably hold that a state also can’t accomplish similar results by indirection by the simple expedient of excluding a potential federal officer from a ballot for a federal election.