Will Trump be on your ballot?

00:00
Speaker 1
It's 2024. Happy New Year.

00:04
Speaker 2
A statute of limitations kind of run out on the new year. Three days? Plenty.

00:10
Speaker 1
Three days. Sorry, Larry. 2024 is gonna be great for lovers of Olympic sport, total eclipses, and people who have been waiting to find out what happens to Paul in Dune.

00:22
Speaker 3
This world is beyond cruelty.

00:26
Speaker 1
2024 will be less great for people who dread nothing more than a rematch between current President Joseph Robinette Biden Jr. And former President Donald John Trump. But that rematch only happens if Trump is allowed to be on your ballot.

00:41
Speaker 4
Breaking news just in the past few minutes. Donald Trump has asked the Supreme Court to overturn a ruling in Colorado and ensure that he can appear on the ballot there and across the country.

00:50
Speaker 1
The states that are trying to cancel Trump, coming up on today, explained.

01:09
Speaker 5
Lots.

01:10
Speaker 1
Of big election news over the holidays. Last night, the former president asked the Supreme Court of the United States to keep him on ballots across the country. Today's a big day for that Colorado ruling. We've got a lot explaining to do. We asked Zach Montalero to help. He's a state politics reporter at Politico.

01:27
Speaker 3
So there's been a push by kind of a strange bedfellows group of some liberal activists, some conservative scholars, to have the former president disqualified from running for the presidency again under interpretation of a section of the 14th Amendment. 14th Amendment was one of the big amendments post civil war, but for our purposes, it focuses on a section that says someone who engaged insurrection is not eligible to hold an office, political office, in the United States.

01:54
Speaker 6
Amendment 14, section three. No person shall be a senator or representative in Congress, or elector of president and vice president, or hold any office, civil or military, under the United States or under any state, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the constitution of the United States, shall have engaged insurrection or rebellion against the same or given aid or comfort to the enemies thereof. But Congress may, by a two thirds vote of each house, remove such a disability.

02:46
Speaker 3
And we've seen a bunch of lawsuits across the country from activist groups, from some kind of long shot candidates, all trying to get Trump kicked off the ballot for 2024. And the reason we're talking about it is because there's actually been two states that have done that.

03:01
Speaker 1
And it sounds something like a liberal fever dream to prevent Donald Trump from getting on the ballot in the first place. But how did this get to be a serious legal action yeah.

03:14
Speaker 3
So certainly the two groups that are responsible for the most prominent lawsuits are generally believed to be liberal. It's crew and a watchdog group that's pretty well known in DC, especially after the Trump era and free speech for people, which is also another activist group that has kind of burst onto the scene with this, although they've been around for a little bit. But it's a real mixture of people advocating for this position. There's those groups, there is some pretty prominent conservative scholars, and I think the one probably most familiar is a former federal judge, Michael Luddig, who, if that name sounds familiar, was integral in then Vice President Pence's deliberations over how you should count electoral votes on January 6, 2021.

03:58
Speaker 3
The judge advised Pence that his job is that he didn't have discretion, that he needed to count the legitimate electoral count votes that were put forward.

04:07
Speaker 2
The votes for president of the United States are as follows. Joseph R. Biden Jr. Of the state of Delaware has received 306 votes. Donald J. Trump of the state of Florida has received 232 votes.

04:22
Speaker 3
He also wrote a piece in the Atlantic last year that was probably the most forward public argument for why the former president should be disqualified under the 14th Amendment. The original meaning of section three disqualifies.

04:38
Speaker 5
The former president from ever holding the presidency again.

04:42
Speaker 3
They kind of kicked this all off, not in a legal sense, but at least in the public discourse, which I.

04:47
Speaker 1
Guess sets us up to. Talk about Colorado. Tell us what happened in Colorado.

04:52
Speaker 3
Colorado was the first state to find that the former president, a, did engage insurrection because of his actions on January 6, and b, because that he did engage insurrection. According to the Colorado Supreme Court, he is disqualified from the ballot. The state supreme court made that ruling in December. They were the first court anywhere nationwide to find both of those holdings. That was a big deal. It's obviously unprecedented. We've never had a presidential candidate disqualified in this manner in recent history, certainly, and in american history. So it was huge.

05:25
Speaker 1
And they did do this pause until today, tomorrow. Why exactly did they make that pause?

05:32
Speaker 3
Yeah. So Colorado said, listen, we know that this is unprecedented. So they said, you know what? We all know this is going to go to the US Supreme Court anyway. So we're going to automatically pause our decision until January 4 today to allow people to file an appeal to the Supreme Court. To the US Supreme Court.

05:49
Speaker 7
Trump has now officially filed his appeal. And here they're asking the court, this is a direct quote. Did the Colorado Supreme Court err in ordering Trump excluded from the 2024 presidential primary? Ballot.

06:01
Speaker 3
So really, in practical senses, unless the Supreme Court issues a ruling before the end of day Friday, determining something or lifting the Colorado pause, in practicalities effect, this means that President Trump will be on the ballot in the Colorado Republican primary.

06:18
Speaker 1
Another place this is happening is Maine. How similar is the Maine case to the Colorado one?

06:26
Speaker 3
Maine is similar in the legal findings, but how we got there is pretty unique. Maine's setup is different from a lot of states. That actually requires the secretary of state, which in most states is the state's chief election official, to be that first stop to make that first proactive determination. In Maine, if you want to challenge a candidate's qualifications, you do it directly with the secretary of state, who, by state law, has to have a hearing about it. So the main secretary of state, Democrat Shannon Bellows, had that hearing in December, and she, too, found that, a, Trump engaged insurrection, and b, therefore, he is disqualified for running for the presidency. That put her in a very different position from a lot of other secretary of states, democratic and republican, and pretty apolitical election officials, of having to make that determination.

07:12
Speaker 3
Many of them said, this is not the role of an election official to make this call, it's the role of the courts. But in Maine, the process requires the secretary basically to make that first call.

07:22
Speaker 4
The events of January 6 were unprecedented and tragic and an insurrection. Those events happened at the behest of and with the knowledge and support of the outgoing president, Mr. Trump.

07:33
Speaker 3
The challenge for her was, okay. Did Trump engage in it?

07:37
Speaker 4
I found Mr. Trump to have engaged insurrection under section three of the 14th Amendment.

07:44
Speaker 3
And she said it would have been an easier decision if there had been a criminal proceedings around this, but there hasn't been. So she said she was duty bound to make the call.

07:53
Speaker 4
In her state, the legislature did not write into the law an exception for complexity or difficult natures of interpretation. They didn't, say, enforce all of the constitutional qualifications except for the ones that are difficult or complex. I do not have the discretion to choose or to decline to do my duty to hold a hearing and then issue a ruling.

08:18
Speaker 3
So she made that determination, but certainly she's come under a lot of scrutiny for it.

08:22
Speaker 1
And perhaps adding to the chaos here is that while Colorado and Maine are saying the former president cannot appear on the ballot, other states are saying he can.

08:34
Speaker 3
Yeah, so a couple of states have had state supreme courts proactively say, yes, Trump can appear on the primary ballot. And I draw that distinction specifically because Michigan and Minnesota, the state supreme courts there, both said Trump can appear on the primary ballot. But their ruling wasn't exonerating Trump and saying the 14th Amendment doesn't apply to him or he didn't engage insurrection or what have you. They were kind of effectively punts, saying primaries are different than general elections. He could be on the primary ballot, but we'll see about the general. And of course, many other states will have Trump on their primary ballot, either because a court case didn't resolve in time, the secretary thought they didn't have the discretion to take somebody off the ballot. Of course, many republican leaning states will have Trump on the ballot.

09:14
Speaker 3
But this is also true for California.

09:16
Speaker 1
A famous rival of Donald Trump's.

09:18
Speaker 2
A 2000 miles wall is a monument to stupidity. Not just vanity to stupidity.

09:25
Speaker 3
Yes, famous rival of Donald Trump. But the legal argument with the secretary of state said that I don't have the ability to make the determination. But there's also the normative argument that setting aside all the legal arguments, is this a good idea? And that is what California governor Gavin Newsom has made saying in paraphrasing him. But the best way to defeat Trump is at the ballot box. Not a procedural move, but we get more votes than him and we win.

09:51
Speaker 1
And now nine Supreme Court justices, three of whom the former president himself appointed, will have to figure it out.

09:59
Speaker 3
Yes, you know, right now we're waiting to see will the Supreme Court step into the Colorado case? But most legal experts assume that the Supreme Court will kind of wade into this Colorado decision. And it's again thrusting the Supreme Court kind of into the center of electoral politics. That something that at least Chief Justice Roberts has said that he kind of wants to, or has projected, at least that he wants to navigate the court out of. But there's really no escaping this, especially now that two states have found that Trump doesn't qualify for the ballot.

10:32
Speaker 1
Zach Montalero politicobunto.com the Supreme Court calls when we're back on today explained.

10:51
Speaker 7
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14:03
Speaker 1
Explained. Today explained is back. We're with Ian Milheiser, who covers the Supreme Court for Vox. Ian, it seems like everyone is waiting on the Supreme Court to take up this issue. Is there any chance the Supreme Court won't?

14:18
Speaker 5
I mean, there is always a small chance that could happen. But the effect if the supreme court were to just not take this case would be that the Colorado decision would stand. So Trump would still be off the ballot in the state of Colorado, but that decision wouldn't be binding in the other 49 states. So we'd have a kind of chaotic situation where some states he'd be on the ballot, some states he wouldn't be on the ballot. You could potentially have red states retaliating against Colorado by removing Joe Biden from their ballots. So we really need the Supreme Court to step in, because the Supreme Court is the only entity that has the authority to say, here's one rule for the entire nation that will govern who and who does not get to be on every state's ballot.

15:09
Speaker 1
Got it. So the Supreme Court doesn't love chaos between the states, even though sometimes they create it themselves. Let's just, for the fun of it, start with maybe the least likely outcome here. What would that be?

15:21
Speaker 5
So the least likely outcome, I think, is just a straight decision affirming the Colorado Supreme Court by the US Supreme Court. I mean, that would mean because this would be a decision coming from the US Supreme Court saying that Trump is an insurrectionist and is constitutionally disqualified from serving as president. That would potentially mean that he has to be removed from the ballot in all 50 states. It would be the end of Trump's career as a politician. It would be the end, potentially, of his eligibility to serve in any office at all. This is a court with a republican supermajority. I think there are some legitimate reasons why the court may want to delay resolution of this case for just a little bit. So I don't think that outcome is very likely at all.

16:10
Speaker 5
But there is at least the possibility that the Supreme Court could say, yep, Trump's an insurrectionist, can't be president.

16:15
Speaker 1
Again, what's more likely?

16:18
Speaker 5
So there's two other possible outcomes. Two Trump raises, or rather, the Colorado Republican Party, in a document that it filed last week, raises a number of rather silly arguments for why this case should be resolved now, to say that Trump can stay on the ballot. One of their arguments is that the Colorado Republican Party has a First Amendment right to put whoever they want to put on the ballot. That's wrong. No, it is well established that states they can have residency requirements, they can require candidates to gather signatures. It just happens all the time that someone wants to get on the ballot and they don't comply with some state law, so they aren't allowed to be on the ballot. There is no First Amendment right to appear on a ballot. So that's not a good argument.

17:10
Speaker 5
The second argument is that, and this is going to sound like the stupidest thing you've ever heard, but okay. The 14th amendment says that the people who are disqualified from serving as president are people who previously served as, quote, an officer of the United States, and then after serving as an officer of the United States, then went on to participate in an insurrection. And the claim that the Republicans are making is that the presidency is not an office. The president is not an officer of the United States, and therefore, Trump is not disqualified because he has not served as an officer of the United States before. And therefore, it's fine, I guess, if he does an insurrection feels a lot.

17:59
Speaker 1
Like the president is the officer of the United States. But who am I? Is there a middle road here that the supreme could take between these sort of, maybe more extreme positions?

18:11
Speaker 5
Yeah, I mean, I think that the court is unlikely to accept either of those two arguments I just mentioned, or to kick Trump off the ballot, at least right away. The middle ground is a punt, and there's a pretty easy way which they can punt this case. And frankly, I think they should punt this case. So the tension that you have in the 14th Amendment, on the one hand, the 14th Amendment says if you commit an insurrection and you've previously served in high office, you can't then go on to serve in high office again. On the other hand, the 14th Amendment protects the right to due process. Before a court is allowed to do something to you, there normally has to be some sort of procedure to determine, like, did you actually do anything wrong? What did you do wrong?

18:59
Speaker 5
Does the thing that you did wrong violate the Constitution? And that requires some sort of a trial, some sort of a fact gathering process, the Colorado state court process, which determined that Trump is ineligible. There was a trial, but it was a pretty truncated know, one of the dissenting justices pointed out, like, there wasn't the normal right to what's called discovery, to gather evidence. Trump didn't have the ordinary right to subpoena witnesses that you see in a lot of trials. The truncated process that the Colorado courts used, I don't think that's enough to comply with the due process clause. But there is another proceeding coming up. Trump is facing a criminal trial in Washington, DC. This trial is supposed to happen in March, which will determine whether or not he is guilty of committing federal crimes because he tried to steal the 2020 election.

19:58
Speaker 5
And so that's the middle ground is that the court says, we're not going to decide now whether or not Trump is ineligible to be president. But after that criminal trial, if he's convicted, we may very well turn around and say, okay, now that he has been convicted of trying to steal the election, he must be removed from the ballot.

20:16
Speaker 1
I want to talk to Ian a bit about the mindset of the nine justices going into this new year, this new term, and know, wildly unprecedented case. The Supreme Court deciding a presidential election seems nuts, unless, of course, you remember the one time they did it.

20:35
Speaker 2
Stand by, standby. CNN right now is moving our earlier declaration of Florida back to the too close to call column. We'll hear argument now. Number 949, George W. Bush and Richard Cheney versus Albert Gore, et al. Bottom line here, the judgment of the Supreme Court of Florida is reversed. That was the judgment that had allowed these broad counts to go forward.

21:02
Speaker 5
President elect of the United States, the honorable George W. Bush.

21:07
Speaker 2
The presidency is more than an honor. It is more than an office.

21:13
Speaker 5
It is a charge to keep, and.

21:16
Speaker 2
I will give it my all. And folks, in the year 2004, please.

21:20
Speaker 1
Could you make up your minds a.

21:21
Speaker 5
Little more conclusively, because I think we.

21:23
Speaker 2
Can'T take another election like this one.

21:27
Speaker 1
What are some of the parallels here between this situation and Bush v. Gore?

21:36
Speaker 5
So, I mean, Bush v. Gore was a very different case for many reasons. I mean, one reason why it is different is that the election had already happened and the official count already showed George W. Bush was up when the case reached the Supreme Court. And I don't think anyone knows whether that count was correct, because what Bush v. Gore did is it shut down the recount that would have determined whether or not Bush or Gore actually won the state of Florida and with it, the presidential election. And so all the Supreme Court had to do there was prevent anything from happening and Bush just became president in this case. If the Supreme Court does nothing, what will happen is that the Colorado Supreme Court's decision will stand and Trump will be removed from the ballot.

22:27
Speaker 5
So the court actually has to come up with a reason to keep Trump on the ballot if they want to keep him on the ballot. Now that think, you know, the most relevance that Bush v. Gore could have for this case is that three of the justices were on Bush's legal team.

22:46
Speaker 1
Three?

22:46
Speaker 5
Three, yeah. Chief Justice John Roberts, Justice Bret Kavanaugh and Amy Coney Barrett, all were on Bush's legal team.

22:54
Speaker 1
I don't think the justices care that it's Bush versus Gore or if it.

22:57
Speaker 5
Were Gore versus Bush.

22:59
Speaker 1
What they care about is how to interpret the Constitution. What are the enduring values that are going to stand a generation from now?

23:05
Speaker 5
And like the Bush v. Gore decision is not remembered as a paragon of Supreme Court jurisprudence.

23:12
Speaker 1
It was deeply partisan. It was a five to four decision. The five conservatives, the four liberals.

23:18
Speaker 2
Right.

23:18
Speaker 5
Its reasoning has been widely criticized.

23:22
Speaker 1
Do you think the fact that it wasn't beloved, even if three of the nine justices were on the Bush legal team, means they might be a little gun shy this time around?

23:33
Speaker 5
I mean, I would hope. I mean, one thing that has changed a lot is that the Supreme Court's approval ratings, according to many polls, are at record lows right now. I think everyone understands that the Supreme Court has become something very partisan, and they start to feel suspicious if the court steps in to do a favor for a republican presidential candidate.

23:55
Speaker 1
But the safest course for the Supreme Court might still look like a favorable decision for the former president, which is saying he gets to stay on the ballot. If that is indeed what transpires here, what will this episode between Colorado and Maine and all the rest have taught us about? I don't know. The 14th Amendment insurrections elections in America ourselves.

24:20
Speaker 5
Ian, a lot of people, not just Republicans. I mean, the New York Times had an article making this argument. I've heard some Democrats say, like, are we really sure we are comfortable with someone who has a lot of popular support and a lot of popular support from some people who recently committed an act of violence on behalf of Donald Trump? There's no easy way to put this. Like, are we afraid it would lead to political violence? Are we afraid that it would lead to the kind of upheaval that we just don't want? But this provision of the 14th Amendment, saying you can't be president if you engage in an insurrection, is in there, and it doesn't exist to protect us from people who are unpopular.

25:13
Speaker 5
If Donald Trump did not have a broad base of popular support, we wouldn't need the 14th amendment, because unpopular candidates lose elections. And so if you don't disqualify someone who has popular support, then you might as well not have this provision in the constitution anyway. Because the only thing that we need to worry about is that someone who actually has the popular support that makes them capable of winning an election might win an election despite the fact that they committed an insurrection. The insurrectionist who retains a broad base of popular support, and if we're not willing to disqualify them, then we should just admit that this provision of the 14th amendment doesn't do any work at all.

26:05
Speaker 1
Ianmilheiserbox.com our program was produced by Isabel angel. We were edited by Amina al Sadi, fact checked by Laura Bullard, and mixed by David Herman. I'm Sean Ramas. For more on this story in the coming weeks, months, year of today, explained.