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 ballotunder , arguing that he engaged in insurrection and thus is banned from being president because of an 1868 constitutional amendment.

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 attempt 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.

The case heard Thursday, Trump v. Anderson, involved having the Supreme Court to 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.

A decision to disqualify the candidacy of Trump, the frontrunner for the Republican nomination, has broader legal and political implications.

This is the first time the Supreme Court will rule on Section 3 of the 14th Amendment, which was enacted after the Civil War to bar former Confederates from holding public office.

Today 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, an act of uprising against the government. Under Section 3, they say, this makes him ineligible to be president again and thus should not be on the primary ballot.

In December, the Colorado Supreme Court agreed in a 4-3 decision Trump engaged in insurrection and could not appear on the state’s ballot.

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. Second, he claimed that Trump never took an oath to “support” the Constitution because he only has held the public office of the president, which does not use that language.

Most importantly, he 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.

The lawyer, Jonathan 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 did. Rather that power lies with Congress, he said, which can, by a two-thirds vote, grant amnesty for someone who engaged in insurrection. Mitchell claimed Congress would have to pass a law allowing states to bar candidates from the ballot in this circumstance.

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.”

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

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.