WASHINGTON — A clear majority of the Supreme Court’s nine justices signaled Thursday that they would overturn a Colorado ruling barring former President Donald Trump from the state’s Republican presidential primary ballot.
The former president, 77, and his lawyers were appealing the Dec. 19 decision by Colorado’s Supreme Court that found Trump ineligible for the March 5 GOP contest by virtue of violating the Constitution’s so-called “Insurrection Clause” during the Jan. 6, 2021, Capitol riot.
Trump’s team argued separately that Congress — not the states — was tasked with enforcing the clause, that the provision did not apply to the office of president, and that the 45th president did not engage in an insurrection when hundreds of his allies stormed the Capitol and disrupted the certification of Joe Biden’s 2020 election victory.
The congressional supremacy argument found the most favor with the court, as Chief Justice John Roberts fretted during oral arguments that upholding the Colorado ruling would open the door to red and blue states removing politicians of opposing parties from the ballot on a whim.
“It’ll come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence,” Roberts said.
“Your Honor, the fact that there are potential frivolous applications of a constitutional provision isn’t a reason,” argued attorney Jason Murray, representing a group of Colorado voters who sought to remove Trump from the ballot.
“The question you have to confront,” liberal Justice Elena Kagan told Murray at another point in his argument, “is why a single state should decide who gets to be president of the United States.”
Conservative Justice Samuel Alito asked Murray about a hypothetical in which candidates for “diplomatic reasons think that it’s in the best interests of the” US to send funds to a foreign nation that describes Washington as “its biggest enemy” — a clear reference to the Obama-Biden policy toward Iran.
“Could a state determine that that person has given aid and comfort to the enemy, and therefore keep that person off the ballot?” Alito asked.
Murray contended that a state could not because the Constitution’s language defining treason is precise.
“I think we have to have faith in our system that people will follow their election processes appropriately,” Shannon Stevenson, Colorado’s solicitor general, replied when presented with a similar question from Alito during her argument.
“I don’t think that this Court should take those threats too seriously,” she added, noting that the judicial system would provide a safeguard in those scenarios.
The clause in question, Section 3 of the Fourteenth Amendment, stipulates: “No person shall…hold any office, civil or military, under the United States…[who] shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The clause also allows Congress to remove that “disability” and allow violators back on the ballot. Some of Trump’s allies in the House of Representatives have proposed legislation this week formally declaring the former president is not an insurrectionist — though the justices spent almost no time on that question during Thursday’s arguments.
Of the justices, only liberal Sonia Sotomayor appeared inclined to rule in favor of Colorado, asking at one point whether Trump attorney Jonathan Mitchell was laying the groundwork for the ex-president to flout the constitutional requirement that he only serve up to eight years in office.
“Are you setting it up so that if some President runs for a third term, that a state can’t disqualify him from the ballot?” asked the Bronx-born jurist.
“Of course, they can disqualify him from the ballot because that is a qualification that is categorical, it’s not defusable by Congress,” Mitchell responded.
The Supreme Court indicates keeping Donald Trump's name on the 2024 presidential ballot
- A majority of the Supreme Court’s nine justices signaled they will overturn a Colorado ruling that barred Donal Trump from the state’s Republican presidential ballot
- The Supreme Court listened to arguments on whether Donald Trump is disqualified from the 2024 presidential election due to his efforts after losing the 2020 election and his part in the Jan. 6, 2021, riot at the US Capitol.
- The Colorado Supreme Court previously ruled that Trump incited the Capitol riot and isn’t eligible to be president again, and as a result, should not be on the state’s primary ballot on March 5.
- A decision upholding the Colorado outcome would have the Supreme Court declare that Trump did engage in insurrection and is barred under the 14th Amendment from holding office again.
- Trump’s attorney Jonathan Mitchell argued that Congress is tasked with enforcing the disqualification clause, not the states that run elections.
“It is not categorical, because Congress can lift the disability by a two-thirds vote,” Mitchell later clarified in response to Justice Ketanji Brown Jackson.
In response to Justice Brett Kavanaugh, Mitchell conceded he would accept the removal of a candidate from the ballot if they were convicted of insurrection.
“The only caveat I would add is that our client is arguing that he has presidential immunity. So, we would not concede that he can be prosecuted for what he did on January 6th,” Mitchell said.
“What we said in our opening brief was President Trump did not engage in any act that can plausibly be characterized as insurrection,” Mitchell later told Justice Jackson. “For an insurrection, there needs to be an organized concerted effort to overthrow the government of the United States through violence.”
“This was a riot. It was not an insurrection.”
Mitchell further contended that the disqualification clause doesn’t specifically list the president as one of the offices under its purview, therefore it cannot apply to Trump.
“The President and the Vice President are not specifically listed,” he argued. “That’s why we’re still making the argument that the presidency is excluded from the covered offices that are listed at the beginning.”
Jackson raised concerns about that very issue during her questioning of Murray.
“Why didn’t they put the word president in the very enumerated list in section three?” she asked. “Doesn’t that at least suggest ambiguity?”
Murray countered that the clause covered the president because it includes the phrase, “officer of the United States.”
“Trump’s main argument is that this Court should create a special exemption to section three that would apply to him and to him alone,” he argued. “There is no possible rationale for such an exemption, and the court should reject the claim that the framers made an extraordinary mistake.”
One clear point of agreement between the defendants and plaintiffs is that they want the high court to determine whether Trump can actually serve as president if he is elected Nov. 5, and not just whether he can run.
“I think it could come back with a vengeance because ultimately members of Congress may have to make the determination after a presidential election,” Murray argued.
“Trump himself urges this court in the first few pages of his brief to resolve the issues on the merits and we think that the court should do so as well.”
In addition to the ballot case, the justices are also expected to have to rule on an emergency appeal by Trump to keep his federal 2020 election subversion trial on hold so he can appeal lower-court rulings that he is not immune from criminal charges.In April, the court also will hear an appeal from one of the more than 1,200 people charged in the Capitol riot. The case could upend a charge prosecutors have brought against more than 300 people, including Trump.
With Post wires
