At Balkinization as part of his ten-part series on the Trump disqualification litigation, Marty Lederman: The First Amendment/Right to Vote/Federalism-Based "Off-Ramp" Argument that Might Carry the Day. Fro the introduction:
The specific question at issue in Trump v. Anderson is whether it would be lawful for Colorado to remove Donald Trump’s name from its Republican presidential primary ballot.
Over the past few decades, the Supreme Court has adjudicated many cases involving state efforts to exclude parties or candidates from a ballot, or impose conditions on ballot access. In virtually every one of those cases, the Court has framed the question as whether the state law restriction or condition violated one or both of two types of private rights that have been incorporated against the States under the Fourteenth Amendment: (i) the First Amendment right of political parties and their adherents to associate for the advancement of political beliefs, and/or (ii) the right of qualified voters to cast their votes effectively. …
In Trump v. Anderson, however, the parties have relegated the First Amendment and voting rights questions to second-class status, at best. Indeed, as my series of posts has reflected, the Petitioners have raised between seven and ten arguments that they emphasize more than, or to the exclusion of, the traditional “election law” questions. Those questions appear only at the tail end of the briefs filed by the intervening-party respondent Colorado Republican State Central Committee—and aren’t very well made there—and they did not appear at all in Trump’s briefs until he included a somewhat veiled allusion to them in a paragraph on page 23 of his reply brief …
I've had serious doubts about whether it was a wise strategy to bury these arguments because, at least as I see it, all of the other arguments Trump and the CRSCC have offered the Court have quite significant weaknesses, and these “election law” arguments provide the strongest ground for reversal of the decision of the Colorado Supreme Court.
[O]ral argument confirmed that I was right to have such doubts. The thing that was obviously (and understandably) of greatest concern to the Justices at oral argument … was that one or a few states should not be able to effectively resolve a contested and fact-intensive question of the constitutional eligibility of a major party's candidate for President.
I'm inclined to agree with this view, particularly as the case concerns a primary ballot. In effect, Colorado is telling the Colorado Republican Party it cannot support a particular candidate. I don't see what interest Colorado has in whom the Colorado Republican Party supports for President. (I might say though that the limitation comes from the Electors Clause rather than (or in addition to) the First Amendment.)
Posted at 6:11 AM