Supreme Court to weigh Trump ballot eligibility: What to watch for in oral arguments

Nine U.S. Supreme Court justices — including three appointed by former President Donald Trump — are set Thursday to hear oral arguments on Trump’s eligibility in this year’s presidential election.

The question became unavoidable for the Supreme Court after Colorado’s top court decided 4-3 to remove Trump from the state’s Republican primary ballot.

The Colorado justices voted to bar Trump under Section 3 of the 14th Amendment, which states that nobody who has taken an oath of office to uphold the Constitution but then engages in “insurrection or rebellion” against the U.S. is permitted to return to public office.

The Colorado court found that Trump engaged in insurrection through his role in the deadly Jan. 6, 2021, riots and attack at the U.S. Capitol. Before Trump’s supporters overran cops at the Capitol, Trump delivered an explosive speech falsely insisting he had won the 2020 presidential election “in a landslide.”

He urged his supporters to “fight like hell” and “take back our country.”

Whether those remarks — and his earlier efforts to upend the results of an election he lost — amounted to engagement in insurrection is a question the Supreme Court will consider.

But that is not the only question.

Trump’s legal team has argued that the constitutional clause at issue does not apply to the presidency. The section explicitly spells out senators and House members as individuals to whom its powers apply. It also cites “any office, civil or military, under the United States,” but it does not specifically cite the president.

A lower court judge in Colorado was swayed that the provision’s wording means it does not apply to the presidency — but the Colorado Supreme Court overruled her.

In a 30-page brief submitted to the U.S. Supreme Court on Monday, Trump’s lawyers argued that “one would expect the text of section 3 to specifically mention the presidency in the list of enumerated offices rather than leave this matter to a contestable inference.”

The former president’s lawyers also argued Trump did not engage in an insurrection at the Capitol, and that even if he did, Congress would have to enforce Section 3, rather than the courts.

Colorado’s Supreme Court previously brushed such arguments aside, finding that the provision applied to Trump.

“President Trump is disqualified from holding the office of President under Section Three,” the Colorado court said in a sprawling unsigned majority opinion. “We do not reach these conclusions lightly. We are mindful of the magnitude and weight of the questions now before us.”

In sifting through the arguments, the Supreme Court — which has a 6-to-3 conservative supermajority — will be traversing difficult terrain, forcing the justices to ultimately take a stand that could frustrate large numbers of Americans.

The case could thrust the court into political territory it has not touched since Bush v. Gore after the 2000 presidential election.

“They can’t win,” said Carl Tobias, a law professor at the University of Richmond. “Half the population is going to be unhappy probably with whatever they do.”

And the political implications are likely to weigh heavily on the judges even if they seek to keep their focus on the law, said Richard Hasen, an election law expert at the University of California, Los Angeles.

“There aren’t strong legal precedents to apply,” Hasen said. “When there’s not controlling cases, it’s very easy to fill the gaps with your own values.”

Since Colorado’s top court made its ruling in December, different elections officials and courts have split when faced with arguments against Trump’s eligibility. The Michigan Supreme Court, the California secretary of state, and the New York Board of Elections have all rejected efforts to disqualify Trump from ballots.

Maine’s secretary of state, however, deemed Trump ineligible and barred him from the ballot.

The court that can determine the rules for all 50 states includes Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett — three conservatives appointed by Trump. They banded together to reverse Roe v. Wade and erase the national right to abortion in 2022, delivering one of the most explosive Supreme Court decisions in decades.

But they have not always sided with Trump. The court firmly rejected the former president’s attempts to use it to overturn the 2020 presidential election.

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