Supreme Court appears leaning to let Donald Trump on Colorado ballot, fearing implications

The U.S. Supreme Court Thursday seemed likely to allow former President Donald Trump to remain on Colorado’s ballot, with both conservative and liberal-leaning justices questioning whether a single state should be allowed to decide a national candidate’s legitimacy.

Colorado’s Supreme Court had decided to remove Trump from the state’s primary ballot, finding that he engaged in insurrection and thus is banned from being president because of an 1868 constitutional amendment.

“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” Justice Elena Kagan, one of the three more liberal justices, said during the hearing.

“In other words, you know, this question of whether a former president is disqualified for insurrection to be president again ... it sounds awfully national to me,” Kagan added. “So whatever means there are to enforce it would suggest that they have to be federal, national means.”

Justices heard oral arguments Thursday. There isn’t a time frame for justices to release a decision, though major ones are typically released in early summer.

But because Colorado and many other states’ primaries, including California’s, are occurring in early March, the court might work more swiftly to provide clarity.

Depending on the outcome, California and other states could go through similar legal processes to remove the former president from the general election ballot.

California Lt. Gov. Eleni Kounalakis had hoped to accomplish that for the March 5 primary. California ballots have already started being mailed with Trump’s name on them.

What is Trump v. Anderson?

The case heard Thursday, Trump v. Anderson, involved having the Supreme Court determine if Colorado was wrong in ruling to exclude Trump from the ballot under Section 3 of the 14th Amendment, which was enacted after the Civil War to bar former Confederates from holding public office.

Colorado and Maine moved to pull Trump’s name from the ballot, but their actions are on hold pending the Supreme Court’s ruling. Colorado already printed primary ballots with Trump on them.

A decision to disqualify the candidacy of Trump, the frontrunner for the Republican nomination, has broader legal and political implications. Dozens of states around the country have similar cases concerning his ballot eligibility.

This is the first time the Supreme Court will rule on Section 3 of the 14th Amendment, a clause which says that officials who engaged in insurrection, an act of uprising against the government, should be barred from holding office again.

Justices, conservative and liberal, seemed to fear that letting states decide to disqualify a national candidate on the grounds of Section 3 without clear federal legislation.

Generally, the Supreme Court skirted the question of whether Trump actually engaged in insurrection or not.

The conservative-leaning court is ideologically split 6-3. Trump appointed three of the sitting justices.

The initial case to pull Trump from Colorado’s ballot came from four Republican and two independent voters working with watchdog Citizens for Responsibility and Ethics in Washington (CREW).

Their lawsuit claimed Trump provoked the Jan. 6, 2021, attack to subvert the peaceful transfer of power after the 2020 presidential election and that this amounts to insurrection. Under Section 3, they say, this makes him ineligible to be president again and thus he should not be on the primary ballot.

In December, the Colorado Supreme Court agreed in a 4-3 decision.

Section 3 reads:

“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. But Congress may by a vote of two-thirds of each House, remove such disability.”

What did Trump’s lawyer argue at the Supreme Court?

On Thursday, Trump’s lawyer relied heavily on the language of Section 3 to argue that it does not apply to Trump’s unique circumstance. First, he argued, Section 3 does not apply to the president as the clause does not name the nation’s highest office.

The lawyer, Jonathan Mitchell, said the president wasn’t an “officer of the United States,” which Section 3 addresses. He argued that term constitutionally refers to appointed, not elected, officials.

Second, Mitchell claimed that Trump never took an oath to “support” the Constitution because he only has held the office of the president, where he only took an oath to “preserve, protect and defend” it.

Most importantly, Mitchell said, Section 3 does not apply to presidential candidates. The clause, he said, only applies to elected officials, which means that the issue should not preclude anyone from being on the ballot at all.

Mitchell said that Jan. 6, 2021, was a “riot” and while Trump had not engaged in insurrection, it wasn’t up to Colorado or any other state to determine if he was disqualified from the ballot because of it.

Rather that power lies with Congress, he said, which can, by a two-thirds vote, restore the ability for an official who engaged in insurrection to hold office.

Mitchell claimed Congress would have to pass a law allowing states to preemptively bar candidates from the ballot in this circumstance.

What did Colorado voters’ lawyer argue at the Supreme Court?

The lawyer for the Colorado voters, Jason Murray, said that Section 3 should certainly apply to the nation’s highest office, even if there are not examples of insurrectionists seeking the presidency.

He added that Section 3 is enforceable by states, not just Congress, and does not require a federal statute to work. Murray said requiring a statute would be counter-intuitive to blocking an insurrectionist from taking office.

He said that the Constitution preserves the right for states to run presidential elections. Under these rules, states are permitted to disqualify presidential candidates who don’t meet certain criteria, such as those seeking a third-term or who are not old enough to hold the office. States should thus be able to disqualify a candidate if they engaged in insurrection under Section 3, which Murray says Trump did.

Murray said the Supreme Court should address the issue now when Trump is a candidate, rather than after the election, to avoid disenfranchising voters by leaving it up to Congress later.

Shannon Stevenson, the solicitor general of Colorado, also appeared. Justice Samuel Alito asked her about the consequences of upholding Colorado’s decision, implying other states could retaliate by moving to ban other candidates.

Referring to courts and other institutions meant to safeguard against abuses of power, Stevenson said, “I think we need to have faith in our system.”

What happened in California?

Lawsuits in dozens of states including California challenged Trump’s ballot ability, but Colorado and Maine were the only two states that moved to bar him. Both are on hold pending the Supreme Court’s decision.

After the Colorado Supreme Court ruling, California’s lieutenant governor asked the secretary of state to “explore every legal option” to take Trump off the ballot. Secretary of State Shirley Weber kept him on the Republican primary ballot when she released the certified list of candidates.

Weber responded to Kounalakis in a Dec. 22 letter saying that challenges to ballot eligibility are to be resolved by courts and that her office was continuing to track legal actions, including that of the Supreme Court. Weber told the Los Angeles Times that blocking Trump from the ballot could be seen as political.

There are pending court cases in California over his ballot status.

Trump would likely not win the general election vote in California given its overwhelming Democratic voter registration. But in states with high Republican concentrations, removing Trump from the ballot would significantly hinder is election odds.

The last time the Supreme Court was thrust into a presidential election was in 2000 — Bush v. Gore — when the justices effectively ruled former President George W. Bush won and stopped a Florida recount. The decision then too was criticized as polarized, sparking similar public debate about the Supreme Court’s role and fair elections.