Could efforts to kick Trump off the ballot impact the presidential race?

Trump faces attempts to disqualify him based on the Jan. 6 insurrection.

January 4, 2024, 4:47 PM

Welcome to 538's politics chat. The transcript below has been lightly edited.

tia.yang (Tia Yang, editor/reporter): Voting will officially begin in the GOP primary contest in less than two weeks, but petitioners in several states are still in the thick of efforts to keep former President Donald Trump off their ballots.

Based on his role in the Jan. 6, 2021, insurrection at the U.S. Capitol, Colorado's Supreme Court ruled on Dec. 19 that Trump cannot appear on the ballot because he is ineligible for the presidency under Section 3 of the Constitution's 14th Amendment, or the so-called "insurrection clause," which bars from office any current or former public official who "engaged in insurrection or rebellion" against the United States. Maine's secretary of state made a similar determination last week.

But both these decisions have been appealed, so their effects are on hold pending further review. Outcomes in both states — and the fate of a battery of similar challenges in other states — could ultimately come down to when and how the U.S. Supreme Court takes action. The court hasn't officially indicated that it will hear the Colorado case, which was appealed by both the state GOP and Trump's team, but parties on both sides of the issue have urged the court to act quickly. The state's ballots will be mailed out on Feb. 12, and the primary will be held on Super Tuesday, March 5, so the clock is ticking.

Today, we're going to chat about possible outcomes to these 14th Amendment challenges, and how they could affect the presidential race. Let's start with the nuts and bolts: What are we looking out for next? Is Trump getting kicked off the ballot in Colorado, Maine or other states even a real possibility here?

geoffrey.skelley (Geoffrey Skelley, senior elections analyst): Depending on the Supreme Court's timeline, it's possible that Trump might not be on a small number of primary ballots. Until the nation's high court weighs in, it will be up to each state as to how to handle any possible ballot ban against Trump. In Colorado, for instance, the secretary of state actually opted to include Trump for now in light of appeals against the state Supreme Court's decision, pending the U.S. Supreme Court's involvement.

Somewhat similarly, Maine's secretary of state has stayed her decision until the appeals process plays out in state courts. But that doesn't mean Maine and Colorado will have the same eventual outcome, or that the nation's high court will decide this case quickly enough to affect who is on the ballot in states voting early in the presidential nomination process (including Colorado and Maine, which both have March 5 primaries). Still, we're not talking about many states here, considering most attempts to use the 14th Amendment to keep Trump off the ballot have failed, albeit usually for procedural reasons — not because a court has disputed that Trump behaved in an insurrectionist manner on Jan. 6, 2021.

Monica Potts (Monica Potts, senior politics reporter): I am keeping an open mind about anything being possible. This all really kicked off in the public discourse in August, when two legal scholars, J. Michael Luttig and Lawrence H. Tribe, argued in an article in The Atlantic that the plain text of the 14th Amendment prohibits Trump from ever being president again because he engaged in insurrection. Liberals and conservatives across the country were already working through the courts to make this a reality, and the two successful bids in Colorado and Maine seemed to agree with Luttig and Tribe's legal arguments that Trump doesn't need to have been convicted of insurrectionary activity for the 14th Amendment to apply.

It's really a question of whether the Supreme Court takes the case up quickly and/or other states follow suit. But they will need to act fast, and the Supreme Court would need to uphold those decisions. Luttig, the conservative legal scholar of the pair, has said he thinks the Supreme Court will affirm the Colorado ruling if it takes the case, but that's no certainty. It's also possible the Supreme Court could just pass on taking up the Colorado case altogether.

geoffrey.skelley: I would assume the Supreme Court will try to move relatively quickly — for it, anyway — given the stakes of this question. It has never ruled on Section 3 of the 14th Amendment before, so there is plenty of room for the court to interpret things narrowly or broadly. Just how the justices go about crafting a ruling is hard to know, but a judgment could delve into whether state officials have the authority to remove someone from the ballot, or if Section 3 even applies to the presidency — the list of offices it covers does not specifically name the presidency. I will say that it's hard to imagine a conservative-led court deciding in favor of keeping the likely Republican presidential nominee off the ballot. Although stranger things have happened, I guess.

Monica Potts: I agree, Geoffrey. It's all so unprecedented. But it's hard to imagine a decision where this Supreme Court removes Trump from the ballot in every state.

tia.yang: It's worth noting that Trump's relationship with the conservative majority he built hasn't always been hunky-dory, particularly after he left office. But even so, a decision to strip him from the ballot here would be surprising. And a ruling on whether the insurrection clause applies would allow the court to sidestep a political landmine and avoid directly weighing in on whether Trump did engage in insurrection.

Relatedly, Geoffrey mentioned earlier that some challenges have been dismissed at the state level for procedural reasons, and some of these rulings (namely those in Minnesota and Michigan) left the door open for further challenges in the general election. In both those states, courts rejected efforts to remove Trump from primary ballots because primaries are internal party affairs, not direct contests for public office. But they did not rule on Trump's eligibility for office under the insurrection clause.

Monica Potts: Right. We could see these cases surfacing again in the general election if Trump wins the primary and the Supreme Court hasn't issued a conclusive ruling preventing further challenges.

geoffrey.skelley: Eligibility for the general election ballot is really the important question here. Keeping Trump off a handful of ballots in the GOP primary wouldn't stop him from becoming the presidential nominee. After all, state Republican parties in Colorado and Maine responded to the Trump ballot decisions by threatening to shift to party-run caucuses to decide presidential preference in their states. In other words, the primaries in those places might not end up deciding anything regarding delegates to the GOP's national convention in July.

tia.yang: In addition to providing certainty heading into the primaries, avoiding having to face this issue again in the general is another incentive for the Supreme Court to issue a quick and decisive ruling in the Colorado case.

But given the crunched timeline and high level of uncertainty (and because we love a wonky election discussion!), what would it look like if we do head into the primaries without a definitive answer from the nation's high court on Trump's eligibility? If it's up to individual states to determine whether Trump can be on their primary ballots, does that outcome come down to differences in state election law, partisan affiliation of state governments, or a mix of both?

Monica Potts: Probably a mix of both! We've already seen Texas Lt. Gov. Dan Patrick threaten to take President Joe Biden off the ballot in the state in retaliation against the Colorado ruling. And there'd probably be a write-in campaign for Trump in the states where he's off the ballot, at the very least. It would be pure chaos.

geoffrey.skelley: If Trump ends up not making the primary ballot in some states, it will create a mess. But considering how Trumpian the GOP has become, the Republican National Committee could be amenable to state Republican parties filing for emergency waivers to switch to caucuses, instead of state-run primaries where Trump isn't on the ballot.

tia.yang: Would a move like this by the GOP represent a major departure in how the primary process works? Would it introduce any new problems?

geoffrey.skelley: Broadly speaking, holding a meaningless primary wouldn't be unusual. Throughout the history of presidential nominations, there are many instances where state parties opted against using a state-run presidential primary for determining delegates and instead used a party-run process (typically a caucus), which resulted in the state-run primary becoming a "beauty contest." This cycle, Nevada is a notable example on the Republican side — the state GOP's Feb. 8 caucuses will allocate national delegates, but there will still be a state-run Republican primary on Feb. 6 that won't affect delegate allocation.

But trying to make a last-minute shift like this would be unusual because state parties have to let the national party know how they plan to conduct their process well in advance. For Republicans, that deadline was Oct. 1. So, any state GOP contemplating a switch from using a state-run primary to implementing a party-run caucus would face a number of administrative and logistical challenges. But again, there's only a small number of states where this is even a possibility. Take the Super Tuesday states: Besides Colorado and Maine, Trump is currently on the ballot in the other 11 states that will hold government-run Republican primaries on that day, and officials and courts in some of those states — like California and Minnesota — have declined to remove Trump.

tia.yang: And there isn't really an equivalent workaround in the general election — I'd think it's even less likely that a state-by-state patchwork happens there. Presumably the Supreme Court will make a decision before we get to that point.

Monica Potts: Agreed. I think they'd want to weigh in for that. I don't think they'd want to let the states decide something so consequential piecemeal.

tia.yang: Whether efforts to remove Trump from the ballots drag on or end quickly, there's another obvious way they could affect the race. Let's talk about how both sides have been playing this issue, messaging-wise. Conservatives seem solidly unified behind Trump. As much as his primary opponents are hoping for something to change the state of the race and knock Trump down a peg, all of them — even outspoken Trump critic Chris Christie — came out against the Colorado ruling.

How are Republicans viewing this issue so far? Will it affect the primary contest at all?

geoffrey.skelley: Yep, just another thing to help cement Trump's support among the GOP base. Not that he needed much help at this point, but this marks the umpteenth time in this primary when the only candidates with even a pencil-thin chance of defeating Trump for the GOP nomination have found themselves essentially supporting Trump or his position in the face of a legal challenge.

Now, we don't have much polling yet to know for sure about how much this may have helped Trump in the primary — I'm skeptical it could have hurt him — because the decision came out Dec. 19, just before the Christmas holiday, and few pollsters have conducted polls in the interim. So I'll be watching the early January polls to see if there's any sign of this having affected things.

Monica Potts: Right, according to a YouGov/The Economist poll that just concluded on Jan. 2, 90 percent of Trump voters and 86 percent of Republicans thought Trump should be eligible to run for president this year. When it comes to Jan. 6, the basis of the ballot disqualification arguments, Democrats think Trump is responsible for the events that day and, when asked, not eligible to run, while Republicans increasingly think he's not responsible and that the insurrection wasn't that violent. They've actually softened their view over time.

Across other polls asking whether respondents agree with the Colorado decision, a solid majority of Republicans opposed it, while an even greater majority of Democrats supported it. Ultimately, we've seen consistent numbers indicating that about a third of Americans, or a little more, think Trump can do no wrong, and about a third of Americans, or a little more, intensely disapprove of Trump.

That said, a majority of Americans in the YouGov/The Economist survey, 54 percent, thought the Supreme Court would decide he's eligible, no matter what they personally think. That's probably because, as we've mentioned, the court has a conservative majority thanks to three justices appointed by Trump himself.

geoffrey.skelley: Overall, 46 percent of Americans thought Trump was eligible to run for president in that survey, while 40 percent thought he wasn't (14 percent weren't sure). And as Monica noted, this question and others all provoked huge partisan divides.

tia.yang: As you alluded to, Geoffrey, Trump's dominant position in the primary polls has seemingly not suffered at all from the slew of legal troubles he's faced throughout this campaign. Many conservatives see these 14th Amendment challenges as the latest in a long line of attacks hurled at Trump as part of a partisan witch hunt. Even Democrats seem to see this as a losing issue, and are wary that it could work to Trump's benefit. How do these latest challenges play within the scheme of Trump's other legal challenges? At this point, will the Republican base see any legal challenges against Trump as legitimate?

Monica Potts: I really don't think they will. In fact, I think they see every legal challenge and indictment as further proof of some of the most out-there conspiracy theories: that the Deep State is out to get Trump.

geoffrey.skelley: Almost certainly not. In mid-December, before the Colorado ruling, a poll from The Washington Post and University of Maryland asked about attitudes toward the Justice Department's criminal charges against Trump over his actions on Jan. 6. Overall, 57 percent of Americans thought the Justice Department was holding Trump accountable under the law like anyone else, while 41 percent felt it was unfairly targeting Trump for political reasons. But among Republicans, 77 percent viewed the Justice Department's charges as politically motivated, while only 20 percent said it aimed to hold Trump accountable.

And in that same poll, Republicans became notably less likely to say Trump bore a "great deal" or "good amount" of responsibility for the Jan. 6 attack on the U.S. Capitol: In December 2021, 27 percent of Republicans said this of Trump, while two years later just 14 percent said the same. By comparison, the share of Democrats who said this slipped by far less, going from 92 percent to 86 percent (independents were basically unchanged, going from 57 percent to 56 percent).

Monica Potts: As Geoffrey said, Republicans seem to be rallying around Trump even more, at least in polls.

tia.yang: Right. These ballot challenges aren't just about support for Trump, but about his actions on Jan. 6 and whether they constituted insurrection. I thought it was interesting that even Democrats' views on this softened a bit.

geoffrey.skelley: Time played at least some role in that, I'm sure. On other questions the poll asked, though, there wasn't much of a shift to speak of among Democrats and independents in the two years since the last poll ran — but Republicans pretty consistently moved toward an even less critical view of Trump's behavior and the actions of those who attacked the Capitol.

Monica Potts: Over time, we've also seen a rise in the dubious claims that the attack on the Capitol was overhyped, and a new conspiracy theory that it was instigated by law enforcement.

tia.yang: Yeah, three years later, conservatives have seemingly made a renewed push to reframe narratives around Jan. 6. Foreseeing and prebutting issues like this in the upcoming election could play into that. For example, in November, newly minted House Speaker Mike Johnson released Capitol security video footage from that day, which conservatives have used to bolster their arguments that the insurrection was a peaceful protest, instigated by law enforcement or an "inside job."

geoffrey.skelley: Easy to buy what you hoped someone was selling in the first place.