While state election officials’ decisions will be important, the legal challenges mean that the Supreme Court will ultimately decide whether Trump is disqualified from running for president again. It is impossible to predict how the justices would decide such a case because it is such a novel question for them to address. Like so many things about Trump’s voyage in public life, this one is constitutionally uncharted waters.
CREW’s lawsuit highlighted a case that shows just how little we know about what the court will do. Of the court’s nine members, for example, only Justice Neil Gorsuch has been involved in a case about presidential candidates’ qualifications. While serving on the Tenth Circuit Court of Appeals in 2012, then-Judge Gorsuch was part of a three-member panel in Hassan v. Colorado. The plaintiff, Abdul Karim Hassan, was a prospective fringe presidential candidate who argued that he had been unlawfully kept off the ballot. While Colorado argued that he was ineligible because he was a naturalized citizen, Hassan argued that the natural-born citizen requirement had been superseded by the Fourteenth Amendment’s Citizenship Clause.
Gorsuch, along with his two colleagues, disagreed. His short, two-paragraph opinion deferred largely to the lower court’s reasoning and analysis. Gorsuch and his colleague only sought to emphasize that “a state’s legitimate interest in protecting the integrity and practical functioning of the political process permits it to exclude from the ballot candidates who are constitutionally prohibited from assuming office.” Since this case involved a far more settled aspect of presidential qualifications, however, it tells us nothing about how Gorsuch might ultimately vote on a novel Section 3 claim against Trump.