“Collateral estoppel”: The other way forward after Colorado

The 2024 election is inevitably headed to the Supreme Court. The Trump legal team plans to appeal the Colorado Supreme Court’s judgment this week that Donald Trump is not a constitutionally valid candidate for president. The Colorado court has even stayed its judgment to let that appeal proceed. 

But that appeal is not the only path for that judgment—or the 2024 election. 

Every state recognizes certain basic principles about when that state’s courts will enforce an earlier judgment. Some states call them “issue preclusion,” while others use the even more cumbersome label of “collateral estoppel.” Despite the awkward names, the point of those doctrines is simple enough: A litigant only gets one “bite at the apple” to fully and fairly litigate an issue in court. And under those doctrines, the Colorado judgment is fair game as the subject for fast-paced litigation, before pre-election deadlines start to run in early January. 

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Such a lawsuit would proceed along the following lines: Like the Colorado case, a plaintiff in another swing state—say, for talking purposes, Nevada—would sue the secretary of state to block him or her from allowing Donald Trump on the election ballot. The plaintiff would then argue that Trump is barred by “collateral estoppel” from litigating that issue in Nevada because he had the chance to fully and fairly litigate the issue of his eligibility in Colorado and lost. Then the plaintiff would seek a prompt, summary resolution of that claim, arguing that everything necessary for the Nevada court to resolve it has already been established. 

But what about the ongoing appeal to the Supreme Court from Colorado? State law answers this question. The American Law Institute’s “Second Restatement of Judgments”—a treatise that is not precedent itself, but is widely cited as an authoritative summary of the national consensus—says that “a judgment otherwise final remains so despite the taking of an appeal unless what is called an appeal actually consists of a trial de novo.” (The Supreme Court appeal is not a “trial de novo.”). Under that generally accepted principle, the Colorado opinion is presently binding against Donald Trump for the time being—and thus creates “collateral estoppel” against him in other courts on the issue of his eligibility—even if the judgment may ultimately be reversed.

Of course, while that principle may state the rule for typical cases, the Trump election litigation is anything but typical. The Colorado Supreme Court’s voluntary stay of its judgment may be a relevant factor in how another state’s courts may decide to apply the doctrine of collateral estoppel. And the rapid schedule of the Trump litigation is a relevant consideration as well, since the Supreme Court is expected to resolve it promptly with the unmovable Colorado pre-election deadlines in mind. 

But that rapid schedule may also favor aggressive litigation in the right state because every other state also has impending pre-election deadlines to finalize the official ballots and other election machinery. A state’s courts could credibly decide to give collateral-estoppel effect to the Colorado judgment, citing upcoming deadlines in that state. And that state court’s decision would, by definition, address a matter of state procedural law—the elements of collateral estoppel—and not the merits of the underlying constitutional issues. In other words, that decision would not ordinarily be subject to review by the U.S. Supreme Court because it would not involve the analysis of federal law. 

Unquestionably, the Trump election litigation brings the nation into uncharted legal waters. Zealous advocacy could advance that litigation into novel areas of state procedural law as well as the nation’s constitutional law. And given the razor-thin margins in the Electoral College’s swing states, such state-court litigation could become very significant.