On Friday, the United Staes Supreme Court decided to grant President Trump’s Petition for Certiorari in Trump vs. Anderson.  However, it took no action on the companion Petition for Certiorari filed by the Colorado Republican Party in Colorado State Republican Central Committee v. Anderson.  Before turning to the issues raised in this case, there are two things to note about the Supreme Court order granting review and the petitions filed.

First, in granting Trump’s petition, the Supreme Court implicitly recognized the necessity to resolve this issue quickly.  The briefs of Trump and his enablers in the Republican Party (and related organizations) are due on January 18, less than two weeks after the order granting review (as opposed to the usual 45 days).  The briefs of Trump’s challengers and the Colorado election official who are in the middle of this case are due thirteen days later on January 31 (along with any outside brief from individuals who want to support Democracy) with any reply briefs due five days later on February 5.  This contrast to the normal deadlines of 45 days for petitioner’s brief with respondent’s brief due 30 days later and the reply brief an additional 35 days later. Additionally, the case will be argued on February 8 which is a special setting in the middle of what would otherwise have been the Supreme Court’s winter break.

Second, the Supreme Court did not rewrite Trump’s question presented.  Typically, the question prsented in a petition for certiorari is narrowly focused on one legal issue.  For example, did the lower court err in finding that the potential for the metabolizing of blood alcohol content is an automatic exigent circumstance permitting law enforcement officers to conduct a warrantless blood draw?  If there are multiple issues in a case, the petition will present multiple questions on which the Supreme Court can pick and choose which issues will be considered at the time that the petition is granted.  For example, the Colorado Republican Party presented three issues:  1) does Section 3 of the Fourteenth Amendment apply to the President; 2) is Section 3 self-executing; and 3) does disqualifying a candidate violate the First Amendment rights of political parties.  By contrast, the Trump Petition, after noting the ruling (that his actions and the office of President fell within the restrictions of Section) simply asks whether the Colorado Supreme Court erred by excluding him from the ballot.  In other words, unlike the usual question which identifies a specific legal error in the ruling, the Supreme Court appears to be allowing the consideration of any potential theory on why the Colorado Supreme Court erred. Continue Reading...