When the Supreme Court ruled yesterday that Colorado did not
have the authority to remove Donald Trump from its ballot,
it said it was working to avoid a patchwork of
ballots where voters in some states got one candidate while
voters and others did not.
It could be chaos, the justices wrote.
But did they in fact avoid potential chaos in their
decision?
Or did they create another equally chaotic consequence?
Politico's Josh Gerstein explores that in his latest piece.
He joins me now. Josh,
thanks for being here. I know you wrote this with
Kyle Cheney.
I'm going to give a shout out to him as
well.
Explain this loophole. Can you call it a loophole?
Well, it may be an unintended consequence of the
court's ruling, Katie. I mean,
you know, the question here is who has the power
to kick insurrectionists off of the ballot,
either the presidential ballot or federal ballot,
state ballot for for any position.
And it seems like no one is not a tenable
answer.
So the Supreme Court here had to basically decide whether
states had the right to kick presidential candidates off the
ballot.
And they said no, they think that that that power
resides with Congress, which is
a fine answer except for the fact that,
you know, Congress is also the one that as we
know from January 6th overseas,
the tallying of electoral votes.
And so our article is basically looking at a controversy
going on in the last 24 hours among constitutional law
professors,
legal experts who say that the courts ruling sort of
punting this to Congress is almost an invitation to people
up there to decide that they're going to unilaterally enforce
this insurrection provision if they don't like the results at
the ballot box in November.
So part of the decision,
though, is that Congress would have to legislate.
That's how I read it,
at least. I'm sure there are legal legal scholars out
there who are not going to read it that way.
But if they have to pass legislation,
a statute of some sort,
is there something that Congress could already look to
to try to potentially say that if Donald Trump wins,
he's not eligible and the election is moot?
Right. So, you know, that is 1 interpretation of the
decision.
Some people say the Electoral Account
Reform Act that was passed a couple years ago that
was supposed to address
the issues that came up four years ago in the
tallying of the electoral ballots,
that that law could be seen as a law that
implements this insurrection provision,
even though it doesn't say that it is a law
like that.
But what's curious, Katie, is that the decision,
at least the way I read it,
is kind of ambiguous. It says Congress could pass legislation,
but the majority doesn't actually say that.
That's the only way Congress can work its will.
Curiously, the concurrence from the three liberals says that's what
the majority said.
But you can't actually find the words in there that
legislation is required to implement this.
Why would that be? Well,
Congress on a number of occasions has considered denying positions
either in the House or the Senate to people who
were considered to be insurrectionists.
And there's a general legal consensus that the House and
the Senate each have the ability to do that.
So there is some role for Congress to implement that
14th Amendment provision
without passing legislation. They can do it with their own
members.
And the question is, could they do that in this
electoral tally that's set to take place in next January
6th?
Talk to a couple of lawmakers about this.
What do they tell you?
Well, you know, they generally said that they're going to
look at this decision very carefully.
I think that, you know,
Democrats were wary of saying right now that this is
something that they'd consider.
You know, their preference obviously on the Democratic side would
be for Joe Biden to win a
decisive victory where that this would not even be a
question.
But it does seem like at least some Democrats,
perhaps those you know, that are on the left end
of the party,
would be reluctant to rule out any possibility if they
really think Trump isn't qualified to be president.
Because there are many legal experts out there,
you know, both on the liberal side and even a
few on the conservative side,
saying that they think this argument has some way.
The the real question on the table is,
did the Supreme Court sort of slam the door shut
on this and nail it shut or is there still
a little bit of wiggle room in that door?
Josh Garceton, really good to have you.
It's a big question right there.
Appreciate it.