The U.S. Supreme Court seems poised to overturn the Colorado Supreme Court’s decision to bar former President Donald Trump from appearing on state primary ballots.
The high court heard arguments Thursday as to whether Section 3 of the 14th Amendment prohibits Trump from again holding office after the Colorado court decided in December that Trump violated a so-called insurrection clause of the Constitution for his involvement in the Jan. 6, 2021, attack on the U.S. Capitol.
Trump, however, has not been explicitly charged with insurrection or rebellion in any of the four criminal cases in which he has been indicted.
Attorney Jonathan Mitchell represented Trump on Thursday, while attorney Jason Murray represented six Colorado voters, arguing against Trump’s eligibility to appear on the ballot.
What’s at stake
It’s the first time the Supreme Court is ruling on the insurrection clause, which was ratified in 1868, shortly after the Civil War, and was intended to prevent those who held roles in the Confederacy from becoming a member of Congress or being elected to other offices.
The hearing centered on what the framers of the amendment included — and didn’t include. Here’s what Section 3 of the 14th Amendment says:
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The provision also says that if someone is found to be disqualified to serve, Congress can overturn that decision with a two-thirds majority vote.
While the case concerns the state of Colorado, the high court’s decision could have major implications in other states that also have pending litigation to remove Trump from the 2024 ballots, like Maine.
If the Supreme Court rules Trump can be kept off the ballot before Colorado’s March 5 primary, the votes for Trump in Colorado would not count.
What were some of the key takeaways from today’s hearing?
Perhaps the biggest indicator of how the high court could be leaning in their decision was when liberal Justices Elena Kagan and Ketanji Brown Jackson asked difficult questions and expressed their concerns over the arguments made by Jason Murray, the lawyer opposing Trump.
The concern over the power of one state
Kagan and Justice Amy Coney Barrett expressed worry over the power a single state has in determining which candidate belongs on a national election ballot. “Why should a single state have the ability to make this determination not only for their own citizens but also for the nation,” Justice Elena Kagan asked Murray, adding that it “seems quite extraordinary.”
Barrett added, “It just doesn’t seem like a state call.”
Murray responded that regardless of what officials in other states would decide, each state would still have the ability to decide which candidates appear on their own ballots.
If the term ‘officer’ applies to the president
Trump’s lawyer argued that the former president doesn’t fall under the description of who can be disqualified from holding office under the insurrection clause because he is not an “officer” of the United States. Mitchell argued that the framers of the amendment meant lower federal officials appointed by the president and not the president himself.
As a part of Mitchell’s argument, he noted that Trump has also never previously taken an oath as an officer of the United States because he’s the first president to have never held a civil or military office before the White House.
Justice Sonia Sotomayor was skeptical of Mitchell’s argument and asked, “Bit of a gerrymandered rule isn’t it, designed to benefit only your client?”
Meanwhile, during a line of questioning to the attorney opposing Trump, fellow liberal Jackson expressed her concern over whether Section 3 of the 14th Amendment applies to the president because it’s not specifically listed among who would be disqualified.
“What is very clear from the history is that the framers were concerned about charismatic rebels who might rise through the ranks to and including the presidency of the United States,” said the attorney opposing Trump.
“But then why didn’t they put the word ‘president’ in the very enumerated list in Section 3?” Jackson asked. “I guess that just makes me worry that maybe they weren’t focused on the president. ... If there’s an ambiguity, why would we construe it, as Justice Kavanaugh pointed out, against democracy?”
Other states could retaliate against Trump if he's kicked off the ballot
Chief Justice John Roberts pointed out that if the Supreme Court rules that Trump can be kicked off of the ballot in Colorado, conservative states might retaliate and kick other candidates, namely Democratic, off the ballot in those states.
“It’ll come down to just a handful of states that are going to decide the presidential election,” Roberts told the attorney opposing Trump. “That’s a pretty daunting consequence.”
Whether the insurrection clause can be enforced on its own
Mitchell argued that Colorado’s decision to bar Trump from the ballot was wrong because the insurrection clause is not self-executing, meaning it can’t be enforced on its own, and it would need a statute from Congress to have a legal effect.
Trump’s lawyer argued that Colorado disqualified him before Congress gave the state the power to do that.
Mitchell also argued that the insurrection clause only disqualifies him from holding office, not running for office. Remember, if Trump wins the presidential election and is barred from holding office under the insurrection clause, Congress could vote to allow him to become president.
“Even if the candidate is an admitted insurrectionist, Section 3 still allows the candidate to run for office, and even win election to office, and then see whether Congress lifts that disability after the election," Mitchell said in response to a hypothetical question from Roberts.
The Supreme Court usually takes a few months to issue its opinions, with big decisions typically announced in June. However, there is expected to be a prompt ruling in this case as both sides have requested it to be fast-tracked to know whether Trump can appear on Colorado’s March 5 primary ballot.
Until there’s a ruling from the Supreme Court regarding Trump’s disqualification, his name will still appear on the Colorado primary ballot, a stipulation indicated by the Colorado Supreme Court if Trump appealed its ruling, which he did.