Today, Explained - Will Trump be on your ballot?

Episode Date: January 4, 2024

As states decide whether Donald Trump is eligible to be on their primary ballots based on his actions on January 6, 2021, the Supreme Court is facing its most consequential elections decision since Bush v. Gore. This episode was produced by Isabel Angell, edited by Amina Al-Sadi, fact-checked by Laura Bullard, engineered by David Herman, and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

It's 2024. Happy New Year. A statute of limitations. Things kind of run out on the New Year. Three days. Plenty. Three days? Sorry, Larry. 2024 is going to be great for lovers of Olympic sport, total eclipses, and people who have been waiting

to find out what happens to Paul in Dune. This world is beyond cruelty. 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. 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. The states that are trying to cancel NBA, has your back all season long. From tip-off to the final buzzer, you're always taken care of with a sportsbook born in Vegas.

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please contact Connex Ontario at 1-866-531-2600 to speak to an advisor free of charge. BetMGM operates pursuant to an operating agreement with iGaming Ontario. It's today. Today, explain. Explain. operating agreement with iGaming Ontario. It's today, today explained. Lots 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 of explaining to do. We asked Zach Montalero to help. He's a state politics reporter at Politico. So there's been a push by a 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 in insurrection is not eligible to hold a political office in the United States. Amendment 14, Section 3. 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 in 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. 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.

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, so certainly the two groups that are responsible for the most prominent lawsuits are generally believed to be liberal. That's Crew and a watchdog group that's pretty well known in D.C., 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 Wettig, who, if that name sounds familiar, was integral in then-Vice President Pence's deliberations

over how you should count electoral votes on January 6th, 2021. The judge advised Pence that his job is, you know, that he didn't have discretion, that he needed to count the legitimate electoral count votes that were put forward. 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. 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 3 disqualifies the former president from ever holding

the presidency again. They kind of kicked this all off, not in a legal sense, but at least in the public discourse. Which kind of kicked this all off, not in a legal sense, but at least in the public discourse. Which I guess sets us up to talk about Colorado. Tell us what happened in Colorado. Colorado was the first state to find that the former president, A, did engage in insurrection because of his actions on January 6th, and B, because he did engage in 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 in American history. So it was huge. And they did do this pause until today slash tomorrow. Why exactly did they make that pause? Yeah. So Colorado said, listen, we know that this is unprecedented. So they said, you know what, like we all know this is going to go to the U.S. Supreme Court anyway. So we're going to automatically pause our decision until January 4th today to allow people to file an appeal to the Supreme Court, to the U.S. Supreme Court. 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. 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 practicality's effect, this means that President Trump will be on the ballot in the Colorado Republican primary. Another place this is happening is Maine. How similar is the Maine case to the Colorado one? 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 Maine Secretary of State, the Democrat, Shanna Bellows, had that hearing in December, and she too found that

A, Trump engaged in 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, you know, pretty apolitical election officials, of having to make that determination. 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 a secretary basically to make that first call. The events of January 6th 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. The challenge for her was, okay, did Trump engage in it? I found Mr. Trump to have engaged in insurrection under section three of the 14th amendment. 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 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.

So she made that determination, but certainly she's come under a lot of scrutiny for it. 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. 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 in 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, many other states will have Trump on their primary ballot, either because a court case didn't resolve in time, the secretaries thought they didn't have the discretion to take somebody off the ballot. Of course, many Republican leading states will have Trump on the ballot, but this is also true for California. A famous rival of Donald Trump's. A 2,000 mile wall is a monument to stupidity, not just vanity, to stupidity. Yes, famous rival of Donald Trump.

But, you know, 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, you know, 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. And now, nine Supreme Court justices, three of whom the former president himself appointed, will have to figure it out. 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. Zach Montalero, politico.com. The Supreme Court calls when we're back on Today Explained. Thank you. They were named the number one digital photo frame by Wirecutter. Aura frames make it easy to share unlimited photos and videos directly from your phone to the frame. When you give an aura frame as a gift, you can personalize it. You can preload it with a thoughtful message, maybe your favorite photos.

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And now you can get $250 when you join RAMP. You go to RAMP.com slash explained, RAMP.com slash explained, RAMP.com slash explained. Cards are issued by Sutton Bank, a member of the FDIC, and terms and conditions do apply. Explained. 2024 Explained. Today Explained is back. We're with Ian Millhiser, 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? I mean, there is always a small chance that 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 know, 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. 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? So the least likely outcome, I think, is just a straight decision affirming

the Colorado Supreme Court by the U.S. Supreme Court. I mean, that would mean because this would be a decision coming from the U.S. 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.

But there is at least the possibility that the Supreme Court could say, yep, Trump's an insurrectionist, can't be president again. What's more likely? So there's two other possible outcomes to 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 um 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 that's. No. It is well established that states 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. The second argument is that and this is going to sound like the stupidest thing you've ever heard, but OK, 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 like the president is the officer of the United States. But but who am I? Is there a middle road here that the Supreme could take between these sort of maybe more extreme positions? 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, you know, 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, you know, 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. You know, 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? Does the thing that you did wrong violate the Constitution? And that requires, you know, some sort of a trial, some sort of a fact gathering process. The Colorado state court process, which determined that Trump is ineligible, like there was a trial, but it was a pretty truncated proceeding. You 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 the truncated process that the colorado's courts used i don't think that's enough to comply with the due process clause

but there is another proceeding coming up there 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. 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 i want to talk to you in a bit about the mindset of the nine

justices going into this new year this new term and this you know wildly unprecedented case the supreme court deciding a presidential election seems nuts, unless, of course, you remember the one time they did it. Stand by, stand by. CNN right now is moving our earlier declaration of Florida back to the too close to call column. We'll hear argument now on number 00949, George W. Bush and Richard Cheney versus Albert Gore at L. 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.

President-elect of the United States, the Honorable George W. Bush. The presidency is more than an honor. It is more than an office. It is a charge to keep, and I will give it my all. And folks, in the year 2004, please, could you make up your minds a little more concisely? Because I think we can't take another election like this one. What are some of the parallels here between this situation and Bush v. Gore? So, I mean, Bush v. Gore, it 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, you know, 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. So like 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 said, I 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.

Three. Three. Yeah. Chief Justice John Roberts, Justice Brett Kavanaugh and Amy Coney Barrett all were on Bush's legal team. Three. Three. Yeah. Chief Justice John Roberts, Justice Brett Kavanaugh and Amy Coney Barrett all were on Bush's legal team. I don't think the justices care that it's Bush versus Gore or if it were Gore versus Bush. What they care about is how to interpret

the Constitution. What are the enduring values that are going to stand a generation from now? And like the Bush v. Gore decision is not remembered as a paragon of Supreme Court jurisprudence. It was deeply partisan. It was a five to four decision.

The five conservatives, the four liberals, right? Its reasoning has been widely criticized. 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? 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. 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, Ian? A lot of people, you know, not just Republicans. I mean, the New York Times had an article making this argument. You know, I've heard some Democrats say, like, are we really sure we are comfortable with, you know, 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.

Are we afraid it would lead to political violence? Are we afraid that it would lead 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, you know, 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. You know, 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. You know, 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, you know, this provision of the 14th Amendment, it doesn't do any work at all. Ian Millhiser, Vox.com. Our program was produced by Isabel Angel.

We were edited by Amina Alsadi, fact-checked by Laura Bullard, and mixed by David Herman. I'm Sean Ramos for more on this story in the coming weeks, months, year of Today Explained. Thank you.