John Greabe, a law professor at the University of New Hampshire, admits he was wrong about Bush v. Gore.
Greabe told his students in 2000 that the US Supreme Court wouldn’t weigh in on Florida’s vote-counting dispute. He figured the justices would aim to preserve their institution’s reputation as a venue for the law, untainted by the grime of partisan presidential politics.
“In that case, the underlying question was going to determine the president of the United States, so there was going to be a very, very strongly negative reaction to any decision on the merits by the court, regardless of which way that it rules — and there has been,” he said.
Ultimately, the justices did weigh in. Their decision halted the recounts and effectively affirmed George W. Bush’s victory.
“I’ve sort of stayed out of making predictions since then,” Greabe said.
Now scholars in Greabe’s line of work are debating weighty constitutional questions about former president Donald Trump’s eligibility for the ballot in 2024 — questions that might again land before the Supreme Court for a final answer.
Proponents of an untested legal theory claim Trump is constitutionally disqualified for office under Section 3 of the 14th Amendment because of his involvement in the events that culminated Jan. 6, 2021, and a newly filed lawsuit in New Hampshire asks a judge to block Trump from the state’s first-in-the-nation primary.
Greabe refrains from speaking too confidently about where the legal wrangling may lead — he really took that quit-making-predictions lesson to heart — but he shared a few insights about how this and similar cases might play out.
For starters, Greabe said the dispute at issue in the New Hampshire lawsuit doesn’t seem quite ripe. The candidate filing period hasn’t opened, and state officials haven’t actually said that Trump will be allowed on the ballot, so the plaintiff may be challenging a decision that hasn’t been made yet. That could lead the judge to issue a stay or dismissal, he said.
This case is far from the only potential vehicle that could press this legal theory. It’s just the first filed in New Hampshire. Greabe said he’d expect such a dispute to work its way through the federal appellate system swiftly, if any lawsuit were to gain traction or any state were to move to block Trump from the ballot.
“If any state were to go down this road, it’s hard for me to see how that doesn’t end up at the Supreme Court pretty quickly,” he said.
The justices could theoretically set such a dispute aside, concluding that it represents a non-justiciable political question, but that would run the risk of “horizontal conflict” between states over their differing outcomes, Greabe said.
“I think we’d see things really ratcheted up if some states were to take the former president off the ballot and others did not,” he said.
So he figures the justices would be more likely to weigh in than not. They might buy the originalist argument that Trump is disqualified, relieving some and infuriating others. Or they might conclude he’s good to compete for another term after all. Either way, if any state deems Trump disqualified, then Greabe said it seems unlikely that they would sit this one out.
Then again, if the Supreme Court violates his expectations, it wouldn’t be the first time.
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