WASHINGTON (Reuters): U.S. Supreme Court justices on Thursday appeared skeptical toward a judicial decision kicking former President Donald Trump off the ballot in Colorado for participating in an insurrection during the 2021 Capitol attack in a case with major implications for the Nov. 5 election.
The nine justices heard arguments in Trump’s appeal of a Dec. 19 ruling by Colorado’s top court to disqualify him from the state’s Republican primary ballot under the U.S. Constitution’s 14th Amendment after finding that he participated in an insurrection.
Trump, who did not attend, is the overwhelming frontrunner for the Republican nomination to challenge Democratic President Joe Biden.
Section 3 of the 14th Amendment bars from holding public office any “officer of the United States” who took an oath “to support the Constitution of the United States” and then “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The justices spent a considerable amount of time mulling the proper way that states may enforce Section 3 against candidates, primarily focusing whether Congress must first pass legislation.
Conservative and liberal justices expressed concern about states having the power on their own to take sweeping actions that impact a presidential election nationwide.
Conservative Chief Justice John Roberts told Jason Murray, representing four Republican voters and two unaffiliated voters who sued to keep Trump off the Colorado ballot, that if the Colorado decision is upheld, other states will proceed with disqualification proceedings of their own for either Democratic or Republican candidates.
“And it will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence,” Roberts said.
“The consequences of what the Colorado Supreme Court did, some people claim, would be quite severe,” conservative Justice Samuel Alito said. “The decision of the Colorado Supreme Court could effectively decide this question for many other states, perhaps all other states.”
Anti-Trump forces have sought to disqualify him in more than two dozen other states – a mostly unsuccessful effort – over his actions relating to the Jan. 6, 2021, Capitol attack. Maine also has barred him from its ballot, a decision put on hold pending the Supreme Court’s ruling in the Colorado case.
Colorado’s Republican primary is scheduled for March 5.
“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,” liberal Justice Elena Kagan asked Murray. “This question of whether a former president is disqualified for insurrection, to be president again … it sounds awfully national to me.”
Conservative Justice Brett Kavanaugh focused on the impact to democracy in trying to figure out what Section 3 means.
“Think about the right of the people to elect candidates of their choice, of letting the people decide, because your position has the effect of disenfranchising voters to a significant degree,” Kavanaugh told Murray.
Murray offered a blunt reply: “The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that we be given another chance.
The Supreme Court’s 6-3 conservative majority includes three justices appointed by Trump.
The justices questioned Trump’s lawyer Jonathan Mitchell over his arguments that Section 3 cannot be enforced by states absent congressional legislation and that presidents are not subject to Section 3.
Roberts asked Mitchell whether a state’s top elections official could disqualify a candidate who comes forward and says he took the oath mentioned in the provision and engaged in an insurrection.
“No, the secretary of state could not do that,” Mitchell said.
“So if the state banned even an admitted insurrectionist from the ballot, it would be adding to and altering the Constitution’s qualifications for office,” Mitchell added.
“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.
The House of Representatives or Senate, if the candidate is running for Congress, would then have to decide on its own “whether to seat that elected insurrectionist because each house is the sole judge of the qualifications of its members.”
Questioned by liberal Justice Ketanji Brown Jackson, Mitchell also argued Trump is not subject to the disqualification language because a president is not an “officer of the United States.” Mitchell said such an officer would only be an appointed official of some kind.
The 14th Amendment was ratified following the American Civil War of 1861-1865 in which seceding Southern states that allowed the practice of slavery rebelled against the U.S. government.
In an interview on Thursday with a conservative radio show host, Trump said allies of Biden were trying to use the Colorado case to take him out of the presidential contest.
“That would be a very terrible thing to do,” Trump said. “It’s about the vote. It’s about our Constitution.”
The case calls on the Supreme Court to play a central role in a presidential contest unlike any since its landmark Bush v. Gore decision that handed Republican George W. Bush the presidency over Democrat Al Gore in 2000.
Trump supporters attacked police and swarmed the Capitol in a bid to prevent Congress from certifying Biden’s victory. Trump gave an incendiary speech to supporters beforehand, telling them to go to the Capitol and “fight like hell.” He then for hours rebuffed requests that he urge the mob to stop.
“This was a riot. It was not an insurrection,” Mitchell told Jackson. “The events were shameful, criminal, violent, all of those things but did not qualify as an insurrection as that term is used in Section 3.”
“The framers of Section 3 knew from painful experience that those who had violently broken their oaths to the Constitution,” Murray said, referring to the officials of seceding Southern states during the Civil War, “couldn’t be trusted to hold power again because they could dismantle our constitutional democracy from within. And so they created a democratic safety valve. President Trump can go ask Congress to give him amnesty by two-thirds vote. But, unless he does that, our Constitution protects us from insurrectionists.”
