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Supreme Court of the United States

Colorado votes Tuesday. The Supreme Court hasn't said if votes for Trump will count.

Their apparent unanimity on a highly charged political issue had suggested a fast decision on a case that had already been fast-tracked.

WASHINGTON − No Supreme Court justice seemed eager last month to kick former President Donald Trump off the ballot when they heard Trump’s challenge to the decision in Colorado that he can’t be a candidate.

Their apparent agreement on a highly charged political issue that could have divided the justices along ideological lines suggested a speedy decision on a case that had already been expedited.

But Colorado holds its primary Tuesday, and the court has stayed silent.

Voters are also going to the polls in Maine, another state where Trump’s ballot eligibility is waiting for a ruling from the high court.

And in Illinois, which votes March 19, a judge last Wednesday relied on the same anti-insurrectionist section of the Constitution used by Colorado to declare that Trump cannot be a candidate – a decision the judge immediately put on hold until the Supreme Court acts.

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Experts say they’re not surprised by the delay.

If the justices’ comments during oral arguments correctly indicate they will eventually side with Trump, there’s less urgency to act. That’s because the moves to remove Trump from Colorado’s and Maine’s ballots remain paused until the Supreme Court weighs in.

'Votes for Trump will be counted'

“It is hard to predict exactly how the U.S. Supreme Court will decide the case, but it is very unlikely that the SCOTUS decision will retroactively alter the outcome of the Colorado primary election,” said David Sloss, a constitutional law professor at Santa Clara University.

Colorado Secretary of State Jena Griswold, who had urged the Supreme Court to keep Trump off the state’s ballot, said she had been hoping for, and expecting, a decision two weeks ago.

“Because at the end of the day, it would be better for Coloradans and Americans to know where the Supreme Court is,” she said. “If we do not have a decision before we start announcing results on Tuesday night, votes for Trump will be counted.”

Protestors gather outside the United States Supreme Court as the court reviews a ruling by a Colorado court that barred former President Donald Trump from appearing on the state’s Republican primary ballot due to his role in the Jan. 6, 2021 attacks on the U.S. Capitol.

Supreme Court is expected to side with Trump

During their Feb. 8 oral arguments, the justices from both sides of the ideological divide questioned the real-world consequences of a state knocking a major presidential candidate off the ballot.

“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” Justice Elena Kagan, one of the court’s three liberal justices, told the attorney for the Colorado voters challenging Trump’s eligibility.

Rick Hasen, a professor and election law expert at the University of California, Irvine School of Law, said the court’s delay in writing up its decision would only be surprising if a majority were going to side with Colorado.

“But it seemed from oral argument that the court will not say that, and the Colorado Supreme Court put its order on hold, so things were not urgent,” Hasen said.

Still, he added, the court knows it has to act. Last Wednesday’s decision by an Illinois judge that Trump is ineligible makes that clear.

It’s possible, Hasen said, that the court could issue a decision before Illinois’ March 19th primary.

'Myriad reasons' possible for the delay

Given the justices’ apparent consensus during oral arguments, it’s taking longer than many people anticipated for a decision, said Notre Dame Law School Professor Derek Muller, who has been closely following the ballot eligibility issue.

The delay could be because they’re trying to reach common ground on the reasons for overturning Colorado’s ruling. Or, if they can’t, they may need time for multiple justices to write up separate opinions that arrive at the same conclusion.

“There are myriad reasons why it is taking time, but there's no question is puts the public in a worse spot if voters lack guidance on this topic as they are voting,” Muller said.

Cardozo Law School professor Alex Reinert, who clerked for Justice Stephen Breyer, said the justices need to be as careful as they can on such an important issue to make sure they anticipate the consequences of the reasons they give.

One potential consequence is to their own credibility. While justices were expressing concerns about one state deciding the election for the entire country, Reinert said, that’s an issue of federalism and doesn’t address the legal arguments for disqualifying Trump.

“It didn’t strike me as particularly compelling from a legal rationale,” he said. “It might be more compelling from a political or pragmatic rationale.”

More:Trump's Supreme Court appeal to be on Colorado ballot relies on these 5 arguments

Norma Anderson, lead plaintiff in the lawsuit seeking to remove former President Donald Trump from the Colorado ballot, speaks to members of the press outside the United States Supreme Court after the court reviewed a ruling by a Colorado court that barred former President Donald Trump from appearing on the state’s Republican primary ballot due to his role in the Jan. 6, 2021 attacks on the U.S. Capitol.

Ballots have already been cast

The chief counsel for the watchdog group representing the Colorado voters who challenged Trump’s eligibility said the delay indicates to him that the off-ramps many pundits thought were available to the Supreme Court aren’t that simple.

“And that, ultimately, we’re right on the facts and the law. And I’d be happy for the Supreme Court to take the time that they need to get there,” said Donald Sherman, chief counsel for Citizens for Responsibility and Ethics in Washington (CREW). “The issue of Trump’s disqualification will remain a valid issue until the Supreme Court decides or until the general election.”

A spokesman for the Trump campaign, which has called the ballot challenges anti-democratic, did not respond to a request for comment.

Meanwhile, early voters in Colorado have had access to ballots since mid-February. More than 830,000 as of Friday.

Griswold, the secretary of state, said her office has received few questions from voters about the issue.

And she said voters will still be able to express their views on Trump no matter what the Supreme Court decides.

“In reality, whether Trump is on the ballot or not,” she said, “the American people will have all the power to save democracy and make their voices heard in the November election.”

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