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No good options for Supreme Court in Trump ballot case

SACHA PFEIFFER, HOST:

The Supreme Court hears arguments tomorrow in a case that will decide whether Donald Trump should be removed from the Republican primary ballot in Colorado. There are at least two questions worth considering, the first is legal. Do his actions around the January 6 attack on the U.S. Capitol bar him from office according to the 14th Amendment? The second question is practical. What would happen if Trump were removed from the ballot? How might his tens of millions of supporters respond? Here's Trump at a rally last month.

(SOUNDBITE OF ARCHIVED RECORDING)

DONALD TRUMP: And I just hope we get fair treatment, because if we don't, our country is in big, big trouble. Does everybody understand what I'm saying? I think so.

(CHEERING)

TRUMP: Because they'll cover that completely differently. They'll cover that in a much different manner.

PFEIFFER: University of Chicago law professor Aziz Huq has spent some time thinking about that second practical question. Welcome.

AZIZ HUQ: Thanks for having me, Sacha.

PFEIFFER: Would you walk us through the arguments for and against removing Trump from the ballot?

HUQ: After the Civil War, Congress proposed and the states ratified an amendment to the Constitution that said that anyone who engaged in insurrection or rebellion, or provided assistance or aid or comfort to those, would be disqualified from holding federal offices if they had previously sworn an oath to uphold the Constitution. The argument today is that Section 3, by its terms, covers various actions that former President Trump committed, particularly on January the 6th.

President Trump argues that the terms of Section 3 do not apply to his actions because he is not the right kind of official and because what happened on January 6 did not count as an insurrection, at least as far as his actions were concerned. He further argues that if Section 3 is to be applied, it has to be done through a mechanism that Congress creates rather than by the independent actions and decisions of various state authorities.

PFEIFFER: So he objects on multiple fronts. Whatever the court's ruling eventually is, would that ruling necessarily apply to all the states in terms of whether Trump is off or on the ballot?

HUQ: I think the best way to think about this is that the Supreme Court often rules on one specific factual dispute involving parties on one side and on the other side. Technically, the ruling binds only those parties. I suspect that even if technically the ruling in the Colorado case only binds the Colorado secretary of state, nonetheless, it will be taken as a powerful signal of what the law is for other state and federal officials.

PFEIFFER: You wrote in Politico that a win for plaintiffs, meaning Trump would be kept off the ballot, would - and we mentioned this earlier - be, quote, "the beginning of a bloody unraveling of democratic norms." Why do you say that?

HUQ: I think it is easy to think, if you are opposed to former President Trump appearing on the 2024 election ballot, that a ruling from the Supreme Court will end the dispute, the public debate over Trump's candidacy in 2024. Even if the court rules, that is almost certainly not going to be the end of the matter. In the past few years, we've seen an increase in people's expressed willingness to commit acts of political violence. We've seen, particularly in the last couple of months, debate about whether state officials are under an obligation to follow instructions from the Supreme Court. And as we saw in 2020 and 2021, there are often questions about how electors in the Electoral College for president can or should behave.

PFEIFFER: It sounds like you're saying that some people, primarily conservatives or Republicans, might resist. They might defy the order, particularly at the state level.

HUQ: I think it would be very surprising if the court rules that Trump is barred from the ballot. I think it would be even more surprising if such a ruling did not spark open and active opposition from the general public who are sympathetic to former President Trump, from state officials and from the people who are involved in the counting and certification of the general election in November 2024.

PFEIFFER: By the way, did I just hear you say you think it's unlikely that the Supreme Court will rule to keep Trump off the ballot?

HUQ: I think that the Supreme Court is unlikely to rule that President Trump is disqualified, even from the Colorado ballot.

PFEIFFER: There is a conservative legal thinker named David French who writes a column for The New York Times, and he makes the argument that the consequences of not disqualifying Trump would be even worse. He says If Trump runs and loses, we could see a repeat of January 6, the attack. And if he wins, he could use the government to go after his political enemies. What do you say about that argument?

HUQ: I think it is completely correct to say, as David French has said, that whatever pathway the country takes between now and, let's say, mid-2025 is one characterized by a very high risk of political violence. Part of that risk is the violence that might follow from supporters of the former president venting their rage at an outcome that they don't like, whether that's a court decision or whether it's an electoral result. Part of that political violence might be the misuse of official power by people who don't think that public expression of democratic preferences is OK when those preferences don't align with their views.

We are in a world in which there is a greater appetite for political violence among both individuals out in the general public and also people who work for the state in various capacities where they have the right to use force. And under those conditions, it is really hard to see how we navigate the next couple of years without some kind of serious political violence. So...

PFEIFFER: Either way, no - you think that whether or not he's on the ballot, there's a risk of political violence?

HUQ: I think that the conditions that are creating, that are pushing political violence to the surface are going to exist regardless of the particular sequence of events that lead up to the 2024 election. I have a really hard time seeing how - any pathway in which political violence is not a substantial risk.

PFEIFFER: That's University of Chicago law professor Aziz Huq. Thank you for your time.

HUQ: Thank you.

(SOUNDBITE OF ELMIENE AND BADBADNOTGOOD SONG, "MARKING MY TIME") Transcript provided by NPR, Copyright NPR.

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Erika Ryan
Erika Ryan is a producer for All Things Considered. She joined NPR after spending 4 years at CNN, where she worked for various shows and CNN.com in Atlanta and Washington, D.C. Ryan began her career in journalism as a print reporter covering arts and culture. She's a graduate of the University of South Carolina, and currently lives in Washington, D.C., with her dog, Millie.
Connor Donevan
Courtney Dorning
Courtney Dorning has been a Senior Editor for NPR's All Things Considered since November 2018. In that role, she's the lead editor for the daily show. Dorning is responsible for newsmaker interviews, lead news segments and the small, quirky features that are a hallmark of the network's flagship afternoon magazine program.
Sacha Pfeiffer
Sacha Pfeiffer is a correspondent for NPR's Investigations team and an occasional guest host for some of NPR's national shows.