The office of Colorado Secretary of State Jena Griswald issued a statement that, since the appeal was filed with the Supreme Court, Trump’s name will remain on the ballot “unless the U.S. Supreme Court declines to take the case or otherwise affirms the Colorado Supreme Court ruling.” That clause or provision from the opinion may offer a welcomed escape option for both the Supreme Court and the state.
The timing question could have an interesting impact on the case. It could avoid a review by the Supreme Court by effectively mooting the case if the Supreme Court simply lets the clock run past January 5, 2024. The question is whether the Court would see a need to review the matter if no change would occur to the ballot itself.
The Colorado Secretary of State issued a press release that stated in part:
“The Colorado Republican Party has appealed the Colorado Supreme Court’s decision in Anderson v. Griswold to the U.S. Supreme Court. With the appeal filed, Donald Trump will be included as a candidate on Colorado’s 2024 Presidential Primary Ballot when certification occurs on Jan. 5, 2024, unless the U.S. Supreme Court declines to take the case or otherwise affirms the Colorado Supreme Court ruling.”
The Supreme Court should still take the case and reject the Colorado decision. This issue will only repeat itself in the general election and challengers are seeking additional judges or courts to embrace this dangerous theory. Currently, Colorado is an outlier. However, the Secretary of State in Maine has been as outspoken as Griswald on what she views as an “insurrection” on January 6th.
It is clear why challengers saw Democrat Maine Secretary of State Shenna Bellows as the most likely to endorse their theory. Bellows has already declared that “The Jan 6 insurrection was an unlawful attempt to overthrow the results of a free and fair election… The insurrectionists failed, and democracy prevailed.” A year after the riot, Bellows was still denoucing what she called “the violent insurrection.”
Colorado may prefer to wait for states like Maine to join the cause rather than leave the state as the outlier. Moreover, it is clear to many of us that Colorado will lose before the Supreme Court if push comes to shove. This would remove the shove if the Court simply allows for review to continue beyond the certification on January 5th.
While the four Colorado justices have been lionized by pundits and the media, the optics could take a bad turn if liberal justices joined conservatives in setting aside this decision. Even on an all Democratically-appointed court, the majority was only able to eek out a 4-3 decision with three justices rejecting this novel theory.
It is hard to portray yourself as the defender of democracy by preventing citizens from voting for the current frontrunner for the presidency. It is even more difficult when various states, including Democratic jurists and justices, reject this radical effort.
The Secretary of State could have sought to lift the limitation on a pending review as barring removal. There was no effort to get the justices to reconsider that part of the ruling. Yet, Griswald could have argued that, once Trump is found to be an insurrectionalist under the Fourteenth Amendment, her office should not be compelled to include his name. After all, the office is not an intermediate court and it has a ruling that Trump is disqualified as a matter of law.
It appears, however, that Griswald accepts this condition that Trump will remain on the ballot unless the Court declines review (which seems unlikely) or affirms the Colorado Supreme Court (which seems even more unlikely).
The question is whether Griswald herself will seek to have the matter declared as moot after January 5th. She can argue that, while the same objections could be raised for the balloting for the general election, it is pure conjecture that Trump will win the primary despite every poll showing an overwhelming lead. She could then avoid a likely reversal but arguing that there is no change on the balloting and thus no injury to the Colorado GOP.
The Colorado GOP is arguing that it is being denied the constitutionally protected right to association due to the removal. Once again, even that right would be effectively protected by a default retention of Trump on the ballot.
The mootness argument, therefore, may hold great appeal for Griswald. It may also appeal to some justices who would like this cup to pass from their lips. Some like Chief Justice John Roberts are incrementalists who prefer to avoid divisive issues when possible. The lasting legacy of Bush v. Gore still haunts the Court decades after its issuance.
An exit ramp offered by a mootness argument might be an irresistible temptation for Roberts as well as the three liberal justices. Others like Justice Bret Kavanaugh could also agree that the Court can wait to see if this matter will arise again before the general election.
For many of us, the mooting of the issue would be a bitter pill since we have long argued for a final rejection on this pernicious legal theory. Yet, with states like Maine, this is not the only horse in the race if it is stopped at the gates.
