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

"We do not 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," in The Definitive Edition of Kafka's Short Stories (ed. Hiroki Dogai), p. 201, Shinchosha, 2024)

It can be said that the Republican Party's judicial strategy succeeded in the 2024 presidential election. Despite facing the unprecedented situation of campaigning while dealing with 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. The current Roberts Court (Supreme Court) consists of six conservatives out of nine members, forming a conservative court. However, it is premature to immediately conclude that the outcome was based on partisanship just because the rulings did not disadvantage Trump. To begin with, the judiciary does not decide the winner of a direct election; 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 in its discretion.

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 such considerations can be observed in the rulings on these exceptional rules.

Moreover, 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 one receives punishment for committing a crime, 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 thought to have played an important role. Therefore, this article clarifies the various rule-related issues concerning the 2024 election, considers how the judiciary committed to them, and reflects on what the ignorance of such rules signifies.

1. Constitutional Requirement Rules

The highest level of rules regarding elections is the Constitution, but it says little about presidential qualifications. Specifically, one must be a natural-born citizen, at least 35 years old, and a resident of the United States for at least 14 years.*1 However, in this election, a requirement that had been long forgotten emerged: 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 been dormant, found an opportunity to reappear in the 2024 election. Lawsuits based on this provision were filed against Trump, who was suspected of involvement in the January 2021 Capitol attack. After the Colorado Supreme Court ruled that he was ineligible to run, the Trump side appealed, and the U.S. Supreme Court finally made a decision. In March 2024, the Trump v. Anderson ruling*3 held that states cannot determine presidential eligibility. It stated that this is a federal jurisdiction and not a matter for states to decide. Because the Trump v. Anderson ruling would have a greater impact on the election if issued after the primaries, the judiciary handed down the decision the day before Super Tuesday to minimize its influence.

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 serving a prison sentence, nor are there specific laws regulating this. While being incarcerated following a conviction would certainly hinder campaign activities, in July 2024, the Trump v. United States ruling*4 held 6-3 that a certain degree of criminal immunity exists, allowing Trump to clear this hurdle as well.

At first glance, these rulings appear favorable to Trump, but that is a matter of the 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 judgment, it should also be noted that originalist interpretation was used 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 the Trump v. United States ruling 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 these rulings may serve as evidence that the court is adhering strictly to the law.

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

While they do not affect the election as directly as constitutional eligibility, there are legal systems that can indirectly influence elections: the 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 provision 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 justices 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 verification at the time of voting, and also began to abolish online voter registration. While these measures are 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, the conservative wing formed a narrow majority opinion, applying the political question doctrine to avoid judicial judgment on this issue. However, since partisan gerrymandering can be carried out by both parties, avoiding judicial judgment does not necessarily favor one side over the other.

While these rulings might appear at first glance to be the conservative court laying the groundwork for the 2024 election, there is no guarantee they work only in favor of the Republican Party, nor is there evidence that any of them considered political factors other than legal judgment. The extent to which these judicial decisions regarding the electoral system influenced this election will await future research results.

3. Campaign Rules—Political Finance Regulation

The Roberts Court has tended to relax political finance regulations, handing down numerous unconstitutionality rulings, most notably the 2010 Citizens United ruling*8. It has been said that the relaxation of political finance regulations favors 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 supporters of the Democratic Party, so it does not necessarily favor only the Republicans. Nevertheless, 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 truth is uncertain. But this is merely an impressionistic view, and since these rulings were made long before Trump's candidacy was 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 files suit seeking 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. In such cases, the matter is listed on the emergency docket rather than the regular docket, and amicus briefs and oral arguments are often omitted. Since only the merits of the injunction are decided quickly without delving into substantive judgment, it is called the shadow docket because important decisions are made out of public view.

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 U.S. 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 granted the 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 after withdrawing from the race, but the federal appeals court denied it, 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, but the federal appeals court denied it, and the Supreme Court also denied the emergency injunction.

As far as these cases show, judicial judgment is not siding with any particular political party. Rather, it takes the form of processing these types of election lawsuits quickly so that judicial decisions do not impact the election, while leaving decisions to the local level as much as possible.

Now, Trump, having won the election, has long mentioned granting himself a pardon. By winning, the risk of being prosecuted has disappeared at least during his term, 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. In legal precedent, presidents have been granted broad discretion regarding pardons, so a self-pardon covering the period before or after prosecution, or the case in general, is possible. However, a self-pardon seems to violate the general rule of law that no one can judge themselves. On the other hand, since the Constitution's Pardon Clause sets no limits on pardons except in cases of impeachment, there is room for a self-pardon to be recognized.

Based on existing case law, the president is granted broad discretion regarding pardons, and if the validity of a self-pardon were to be litigated, it might be upheld. Furthermore, while the Trump v. United States ruling held that criminal immunity only applies to official acts, a self-pardon might also cover private acts, potentially resulting in the president being removed from the reach of the law regardless of whether the act was public or private. If it comes to litigation, what kind of judgment will the judiciary hand down?

The epigraph describes a tragic situation where the common people believe that rules created by the aristocracy are being strictly observed, even though they do not know the content of those rules. This also applies to election rules. Unless one is an expert, it is difficult to say one is well-versed in the aforementioned rules. What is generally known is at most the birth and age requirements for the president; 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 suggested for the Democratic Party's defeat, one of which is an elitist way of thinking that is out of touch with the sensibilities of ordinary citizens.*13 Doesn't the issue of the disqualification clause contain such an aspect? Using rules unfamiliar to citizens to denounce Trump—even if the act itself gained sympathy—might have been a mundane example showing the distance between the Democratic intellectual class and the citizens. On the other hand, as the epigraph indicates, the situation where rules are believed to be followed is what matters; if there is a fact that a rule might have been broken, it could be said that citizen support can be gained. However, if that is the case, the Republican Party's tightening of checks on rule violations to maintain the rule of "fair elections" could also resonate, and there too, the Democratic Party is forced to reconsider.

That said, the Republican Party also once had a gap between the wealthy and the common citizens, and how to bridge the distance between the elite and the citizens is an important task 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 the rules while gaining the trust of the citizens will also become an important challenge.

〈Notes〉

*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.