US Silence on Trump Ballot Battle Signals Caution Over Election

The federal government has remained conspicuously silent on Donald Trump’s appeal to remain on Colorado’s 2024 primary ballot after jumping into highly political Supreme Court fights over everything from abortion rights to federal election laws.

The Solicitor General’s Office didn’t express its views before the Jan. 31 deadline for final briefs supporting the Republican voters who sued to keep Trump off the form for the March 5 Republican primary.

While there’s no hard and fast rule dictating when an administration’s Supreme Court litigator can take a position in a case, the office seems to be drawing the line at disputes that could determine who wins the White House.

“That’s at least an understandable minimum threshold to say ‘we’re not going to step in where the outcome of this particular election or candidacy is at stake,’” Notre Dame law professor Derek Muller said on Bloomberg Law’s “Cases and Controversies” podcast.

Trump’s attorneys will try to convince a majority of the justices during arguments on Feb. 8 that the Colorado Supreme Court wrongly ruled that he’s disqualified from holding office for having engaged in an insurrection during the Jan. 6, 2021, Capitol riot. A ruling against him could kick the Republican front-runner off the ballot in some states ahead of Super Tuesday.

Inconsistent Actions

There’s little in Supreme Court history to compare the Colorado case to other than Bush v. Gore when the justices were asked to stop Florida from manually recounting votes in the 2000 presidential election that George W. Bush narrowly won over Al Gore. The solicitor general stayed silent then, too, and the court ultimately ruled a recount wouldn’t be constitutional.

“This is obviously a very different case but has similar stakes,” said Kirti Datla, who worked for Hogan Lovells’ Supreme Court and appellate practice before joining Earthjustice as its director of strategic legal advocacy in 2021.

“I imagine whatever considerations were at play in making that decision are coming into play here,” she said. “There’s probably just a line where, even if there might be some federal interests at play, it’s just not internally seen as appropriate or necessary to step in given the political nature of the case.”

Politics were at play when Republican officials in North Carolina asked the court last term to give state legislatures near exclusive authority to set federal election rules in Moore v. Harper.
In that case, Solicitor General Elizabeth Prelogar urged the court in a brief not to disrupt how federal elections are run, and then participated in the argument and won.

Solicitor General Elizabeth Prelogar

Photo: Justice Department

“You’re right to highlight there’s been some inconsistencies in when the solicitor general has stepped in and we don’t have great explanations about the context in which they have or haven’t,” Muller said.

A spokesman for Prelogar declined to comment when asked why the Biden administration was silent in Trump’s case.

Public Perception

Often referred to as the 10th justice, the solicitor general serves a role that involves educating the court and explaining policy implications of a case, in addition to advocating for certain positions.

John Elwood, who served as an assistant to the solicitor general during the George W. Bush administration, said the office typically gets involved when the Supreme Court faces a question affecting a US program.

“That really isn’t squarely implicated here,” he said about Trump’s case.

Prelogar’s office filed a brief in 48 of the 55 cases argued where there was a signed opinion last term and has filed one in all but two cases argued so far this term, said Adam Feldman, creator and author of the Empirical SCOTUS blog.

He noted the solicitor general also stayed out of Rucho v. Common Cause in 2019. The court ruled then that partisan gerrymandering claims present political questions beyond the reach of the federal courts.

That case, “is possibly an analog to explain that the SG’s absence in the Trump case, while unusual, is not wholly unprecedented,” he said.

Trump’s case asks the justices to decide several legal questions. Key among them is whether Section 3 of the 14th Amendment bars him from holding office.

If the government were to say it should, some people might perceive that as an effort to keep an opponent off the ballot, said Gibson Dunn partner Theodore Olson, who argued for Bush in Bush v. Gore before serving as solicitor general in his administration.

But people are going to talk no matter what, Olson said.

“Staying out of it runs the risk that people will say you’re ducking a very important constitutional question and, of all things, the government of the United States ought to have a view about the interpretation of this important provision of one of the constitutional amendments,” he said.