[Special Feature: The Presidential Election and the Future of America] Keigo Obayashi: Elections, Rules, and the Judiciary—The Foreshadowing of the 2024 US Presidential Election

2025/02/06

"We believe, without a doubt, that these laws are strictly observed, but it is extremely painful to be ruled by laws that one does not know." (Kafka, "The Problem of Our Laws," from "The Definitive Collection of Kafka's Short Stories" (Ed. Hiroki Kumagai), p. 201, Shinchosha, 2024)

It can be said that the Republican Party's judicial strategy proved successful in the 2024 presidential election. Despite facing the unprecedented situation of campaigning while entangled in numerous lawsuits, Trump was able to reach the election results without suffering a fatal blow. This can be attributed to the influence of the conservative judiciary that the Republican Party has gradually built up. The current Roberts Court (Supreme Court) consists of six conservatives out of nine members, forming a conservative court. However, it would be premature to immediately conclude that the outcome was based on partisanship just because the rulings did not disadvantage Trump. In the first place, the judiciary does not decide the outcome of direct elections; it merely adjudicates the rules surrounding the election. Rather, it seems the judiciary sought to maintain a distance from politics by strictly adhering to legal judgment while exercising self-restraint.

Furthermore, elections can sometimes influence judicial rules. When litigation surged during the 2020 pandemic election, the Supreme Court made exceptional emergency rulings, and several such instances occurred in this election as well. Here too, the judiciary is required to provide fair judgment with minimal impact, and looking at the rulings on these exceptional rules, one can perceive such considerations.

Additionally, the results of this election may relate to the rules of criminal punishment. Trump has been indicted on numerous charges. While the rule is that those who commit crimes receive punishment, Trump's victory may affect such rules. This is because Trump may become the first person in American history to exercise a self-pardon.

In this way, various rules existed as foreshadowing in this election and are considered to have played an important role. Therefore, this article clarifies the various rule-related issues regarding the 2024 election, examines how the judiciary committed to them, and considers what the ignorance of such rules signifies.

1. Constitutional Requirement Rules

The highest level of rules regarding elections is the Constitution, but it specifies little regarding presidential qualifications. Namely, being a natural-born citizen, being at least 35 years old, and having resided in the United States for at least 14 years.*1 However, in this election, a requirement that had been long forgotten resurfaced: the existence of the disqualification clause. This requirement was established approximately 150 years ago during the Civil War to prevent those who sided with the Confederacy from returning to public office, ensuring that those who had sworn an oath to the Constitution as public officials but participated in insurrection or rebellion could not hold office.*2 This clause, which had long lain dormant, found an opportunity to reappear in the 2024 election. A lawsuit based on this provision was filed against Trump, who was suspected of involvement in the January 2021 Capitol riot. After the Colorado Supreme Court ruled that he was ineligible to run, the Trump side appealed, and the US Supreme Court finally made a determination. In March 2024, the Trump v. Anderson ruling*3 held that states cannot determine presidential eligibility. It ruled that this is a federal jurisdiction and not a matter for states to decide. Because the impact on the election would increase after the primaries, the Supreme Court handed down its decision the day before Super Tuesday to minimize the impact of the judicial ruling.

As a result, the constitutional barriers preventing Trump's candidacy were removed. Although criminal proceedings for conspiracy and other charges related to the 2020 election were ongoing, there are no constitutional provisions regarding eligibility while incarcerated, nor are there specific laws regulating this. While a conviction and imprisonment would certainly hinder campaign activities, in July 2024, the Trump v. United States ruling*4 was handed down in a 6-3 decision granting a certain degree of criminal immunity, allowing Trump to clear this hurdle as well.

At first glance, these rulings appear favorable to Trump, but that is a matter of the resulting outcome; the content of the rulings themselves is not necessarily partisan. The Supreme Court based its decisions on federalism and the separation of powers, maintaining a stance of strict legal judgment. The Trump v. Anderson ruling was unanimous, and while Trump v. United States was split 6-3 between conservatives and liberals, the point of contention there was the understanding of the separation of powers and the rule of law. While it is natural for the judiciary to perform only legal judgments, it should also be noted that originalist interpretation was employed to ensure the objectivity of those legal judgments. The Trump v. Anderson ruling focused on the meaning of the text of Section 3 of the 14th Amendment and historical practices after its enactment, while Trump v. United States also emphasized the views of the framers regarding the separation of powers and executive power. Since Justice Scalia theorized originalism, it has been strongly advocated as a method for controlling judicial discretion, and it may serve as evidence that these rulings adhered strictly to the law.

2. Electoral System Rules—The Voting Rights Act and Vote Dilution

While they do not influence the election as directly as constitutional eligibility, there are legal systems that can indirectly affect elections: rules regarding the electoral system. The Voting Rights Act of 1965, enacted under the influence of the Civil Rights Movement, established a preclearance mechanism for the federal government to check changes in voting methods to prevent states from establishing discriminatory practices. This was perceived as a legal system favorable to the Democratic Party, which has a large Black support base, and the Republican Party sought opportunities to abolish it. The 2013 Shelby ruling*5 declared the provisions regarding the formula for designating covered jurisdictions unconstitutional. The ruling stated that the situation regarding voter registration and turnout from half a century ago has changed significantly, and using the same framework today violates state sovereignty and the principle of equal sovereignty among states. This ruling was 5-4, with all liberal judges dissenting. As a result of this ruling, states that were previously covered—and even those that were not—began to tighten voting procedures, such as requiring ID for voting, and abolished online voter registration. While these measures were justified on the grounds of fair elections, many point out that they work to the disadvantage of minority voting behavior.*6

Regarding the setting of electoral districts, opinions were divided particularly on the response to partisan gerrymandering. In the 2019 Rucho ruling*7, conservatives formed the majority opinion by a narrow margin, applying the political question doctrine to avoid judicial judgment on this issue. However, since both parties may engage in partisan gerrymandering, avoiding judicial judgment does not necessarily favor one side over the other.

At first glance, these decisions may seem like the conservative court laying the groundwork for the 2024 election; however, there is no guarantee they work only in favor of the Republican Party, nor is there evidence that any of them considered political factors outside of legal judgment. The extent to which these judicial decisions regarding the electoral system influenced this election will await future research results.

3. Campaign Activity Rules—Political Finance Regulation

The Roberts Court has tended to relax political finance regulations, handing down numerous unconstitutional rulings, starting with the 2010 Citizens United ruling*8. The relaxation of political finance regulations was said to favor the Republican Party, which receives significant support from large corporations and the wealthy. However, Big Tech, giant corporations, and the wealthy intellectual class are often Democratic supporters, so it does not necessarily favor only the Republican Party. That said, some may view the Roberts Court's significant relaxation of regulations on negative campaigning as having worked in favor of the Trump camp, which excels at criticizing opponents using hyperbolic expressions, even if their veracity is uncertain. But this is merely an impressionistic view, and since these were decisions made before Trump's candidacy was even decided, they cannot be called rulings favorable only to the Republican Party.

Next, we address the relationship between election-related litigation and judicial rules: the shadow docket. When a plaintiff sues for an emergency injunction, the Supreme Court may take up the case and make an emergency decision even while it is being heard in a federal appeals court. At this time, the case is placed on an emergency docket rather than the regular docket; amicus briefs and oral arguments are often omitted, and only the merits of the injunction are quickly decided without delving into substantive judgment. Because important decisions are made out of public sight, it is called the shadow docket.

There were four shadow docket cases in the 2024 election. First, in Republican National Committee v. Genser*9, the dispute was over whether to allow provisional ballots for mail-in votes treated as invalid by machines; the Republican Party sought to stay a Pennsylvania Supreme Court decision allowing the counting of provisional ballots, but the US Supreme Court denied the request. Next, in Beals v. Va. Coal. for Immigrant Rights*10, immigrant groups sued for an injunction after the Governor of Virginia removed non-citizens from the voter rolls. A federal appeals court had issued an injunction, but the Supreme Court granted the request to stay that injunction. In Kennedy v. Benson*11, Robert F. Kennedy Jr., who ran as an independent, requested his name be removed from the Michigan ballot because he had withdrawn from the race; the federal appeals court denied this, and the Supreme Court also denied the emergency injunction. Kennedy v. Wisconsin Elections Commission*12 was a similar case where Kennedy sought to have his name removed from the Wisconsin ballot; the federal appeals court denied it, and the Supreme Court also denied the emergency injunction.

Looking at these cases, judicial decisions do not appear to be favoring any specific political party. Rather, by making judicial decisions on these types of election lawsuits, the court processed them quickly to avoid influencing the election and sought to leave decisions to local authorities as much as possible.

Now, having won the election, Trump has long mentioned granting himself a pardon. By winning, the risk of being prosecuted has vanished at least while in office, and in fact, several prosecutions have been withdrawn. However, the possibility of being prosecuted separately after leaving office remains, and Trump may perform a self-pardon out of caution.

However, there has never been an instance of a self-pardon; during the Watergate scandal, successor President Ford pardoned former President Nixon. Based on precedent, presidents have been granted broad discretion regarding pardons, so a self-pardon covering events in general, regardless of whether it is before or after prosecution, is a possibility. However, a self-pardon seems to violate the general rule of law that no one can judge themselves. On the other hand, since the Pardon Clause of the Constitution sets no limits on pardons except in cases of impeachment, there is room for a self-pardon to be recognized.

Looking at judicial precedents thus far, presidents are granted broad discretion regarding pardons, and if the validity of a self-pardon were litigated, it might be upheld. Furthermore, while the Trump v. United States ruling held that criminal immunity does not apply to non-official acts, a self-pardon might cover private acts as well, potentially resulting in the president being removed from the reach of the law entirely, whether for public or private matters. If it comes to litigation, what kind of judgment will the judiciary hand down?

The epigraph describes a tragic situation where the masses believe that rules are being followed despite not knowing the content of the rules created by the aristocracy. This also applies to election rules. Unless one is an expert, it is difficult to say one is well-versed in the aforementioned rules. Generally, people know at most the birth and age requirements for the presidency; without immersing oneself in the world of elections, it is difficult to understand complex political finance regulations or the monitoring processes of the Voting Rights Act. Furthermore, the disqualification clause of Section 3 of the 14th Amendment had been forgotten long ago.

This, in turn, serves as an admonition to liberals. Various factors have been presented as reasons for the Democratic defeat, one of which is elite thinking that is out of touch with the sensibilities of citizens.*13 The issue of the disqualification clause, in particular, may contain such aspects. Denouncing Trump using rules unfamiliar to citizens—even if the act itself gained sympathy—might have been a mundane example showing the gap between the Democratic intellectual class and the citizenry. On the other hand, as the epigraph indicates, the very situation where rules are believed to be followed is important; if there is a fact that a rule might have been broken, it could be said that the support of citizens can be gained. But if that is the case, the Republican Party's tightening of checks on rule violations to maintain the rule of "fair elections" could also gain sympathy, and there too, the Democratic Party is forced to reconsider.

However, there was once a divergence between the wealthy and the citizenry within the Republican Party as well, and how to bridge the distance between the elite and the citizenry is an important challenge for both parties. If so, even though the Republican Party has succeeded in forming a conservative judiciary, how the judiciary—as one of the elite groups—maintains rules while gaining the trust of citizens will also become an important issue.

*6 See, e.g., Zoltan Hajnal, John Kuk, Nazita Lajevardi, We All Agree: Strict Voter ID Laws Disproportionally Burden Minorities, 80 J. POL. 1052 (2018).

*13 Nicholas Kristof, Will Democrats Finally Pay Attention to the Working Class?, N.Y. TIMES, Nov. 10, 2024, SR at 3.