The Supreme Court: An Unlikely Path to a Trump Victory

David Mark, a political journalist, author, and public speaker, is known for his works "Going Dirty: The Art of Negative Campaigning" and "Dog Whistles, Walk-Backs, and Washington Handshakes: Decoding the Jargon Slang and Bluster of American Political Speech." The opinions expressed in this commentary are his own and can be found at CNN.

The upcoming 2024 presidential race is expected to hinge on a few crucial swing states, namely Arizona, Georgia, Michigan, Nevada, New Hampshire, North Carolina, Pennsylvania, and Wisconsin. Additionally, single Electoral College votes in Maine and Nebraska, based on presidential preferences in individual House districts, are likely to play a significant role in the election outcome. This prediction is based on voter registration trends, recent elections, and other relevant factors.

David Mark

David Mark reports that in the potential rematch between President Joe Biden and former President Donald Trump, it is expected that the remaining 40 states and the District of Columbia will align with either the Republican or Democratic party, although there is still plenty of time for change before Election Day.

A wildcard factor is whether Trump will be deemed ineligible for the 2024 ballot. If the courts allow it, the swing states could gain even more influence over who wins the presidency in 2024, since there are a total of 68 electoral votes in those swing states where secretaries of state are elected Democrats or were appointed by a Democratic governor and may be in a position to decide if Trump's name is kept off ballots. That's out of 538 electoral votes, with a majority, 270, needed to win the presidency.

President Donald Trump arrives at the "Stop The Steal" Rally on January 6, 2021 in Washington, DC.

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The 14th Amendment should not disqualify Trump from running for office, as evidenced by the recent decision made by Maine Secretary of State Shenna Bellows. Despite being a top election official and a Democrat, Bellows' decision to exclude Trump from the ballot in her state has sparked national debate. This decision is based on Trump's actions on January 6, 2021, particularly his role in trying to block congressional certification of Biden's 2020 win and the subsequent attack on the Capitol by his supporters. Although Bellows' decision is currently on hold pending a ruling from Maines Superior Court, it raises important questions about the interpretation and application of the 14th Amendment.

Nine days after the Colorado Supreme Court removed Trump from the state's 2024 ballot over concerns about the 14th Amendment "insurrection ban," Maine has also taken action. The New York Times reported that the Trump campaign plans to challenge both decisions. In Maine, Trump's lawyers will challenge the decision in state court, while the Colorado ruling will be appealed to the US Supreme Court.

Not only Colorado and Maine, but also Michigan and Minnesota have considered measures to remove Trump from the 2024 ballots, although their proposals were denied. While there wasn't a formal court challenge in California, the state's top election official has decided to keep Trump on the list of certified candidates for the state's GOP primary, despite political pressure to remove him. Trump has also survived ballot access challenges in Arizona and New Hampshire, and the outcome of one in Oregon is still pending.

On September 15, 2023, in Washington, DC, Republican Presidential candidate and former President Donald Trump made an appearance to address the Pray Vote Stand Summit at the Omni Shoreham Hotel. The event provided a platform for multiple 2024 Republican Presidential candidates to present their platform to the conservative audience members. (Photo by Anna Moneymaker/Getty Images)

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The increasing number of legal actions and the rejection of Trump's ballot access by two states make it probable that the high court will address the issue. The justices would aim to establish uniform standards for states to follow when considering efforts to exclude Trump from future ballots, including the possibility of allowing such exclusion at all.

On the surface, it seems unlikely that the Supreme Court would rule in favor of removing Trump from state ballots. The conservative 6-3 majority includes three justices appointed by Trump. Furthermore, in recent years, justices have been hesitant to intervene in election rule disputes, stating that these matters should be handled by elected officials.

The Trump era has shown that anything is possible in politics. If the Supreme Court upholds measures to disqualify Trump from the ballot, individual secretaries of states would gain significant influence, especially in states with a large number of electoral votes such as Colorado, where Biden decisively beat Trump in the 2020 election. Thus, Trump's potential disqualification in Colorado would have minimal impact on practical politics.

However, this is not the case in states where the top election officials are aligned with the Democratic party. Elected Democratic secretaries of state include Adrian Fontes of Arizona (11 electoral votes), Jocelyn Benson in Michigan (15 electoral votes), Cisco Aguilar of Nevada (6 electoral votes), and Elaine Marshall of North Carolina (16 electoral votes). In Pennsylvania (19 electoral votes), Al Schmidt was appointed by Democratic Gov. Josh Shapiro and confirmed by the state Senate (Schmidt is a Republican former Philadelphia city commissioner who Trump targeted for criticism in the aftermath of his 2020 election loss.)

Former President Donald Trump looks on during a campaign rally at the Reno-Sparks Convention Center on December 17, 2023 in Reno, Nevada.

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The move to utilize the 14th Amendment is incredibly unwise. When factoring in a single Maine electoral vote that favors Trump in the 2nd congressional district, which he won in both 2016 and 2020, it brings the total to 68. This is due to Maine, along with Nebraska, awarding two electoral votes based on the statewide popular vote and one vote for each congressional district, bringing the total to four electoral votes in Maine and five in Nebraska.

In some swing state electoral votes, the top elections official is Republican, totaling 21 electoral votes. This includes Georgia with GOP Secretary of State Brad Raffensperger (16 electoral votes) and Nebraska, where Democrats have a good chance at winning one electoral vote from the Cornhusker State's 2nd congressional district, as seen in 2008 and 2020. In New Hampshire (4 electoral votes), which Biden easily won in 2020, the secretary of state is appointed by the Republican-majority legislature.

In Wisconsin, a key swing state, elections are overseen by its election commission. The panel recently denied a request to remove Trump from the 2024 ballot, seemingly resolving the issue for the rest of the election season.

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Michigan provides a significant example. Secretary of State Benson stated on Wednesday that the state's highest court had rightfully determined that she did not have the authority to prevent Trump from appearing on the Republican primary ballot. However, if the Supreme Court decision were to grant secretaries of state that power in the future, Benson could potentially use her own professional judgment to disqualify Trump. If state election officials were to block Trump from their ballots based on a Supreme Court ruling, it could greatly diminish his chances of winning a second term. The fate of this situation may soon be determined by the Supreme Court.