Supreme Court justices skeptical of removing Trump from Colorado ballot

The Supreme Court appeared skeptical of a group of Colorado voters’ arguments to remove former President Donald Trump from Colorado’s Republican primary ballot during oral arguments on Thursday.

The Colorado voters’ efforts rest on the shoulders of the argument that Section 3 of the 14th Amendment, a Civil War-era constitutional provision intended to ban former officeholders who “engaged in insurrection” from election ballots, should apply to Trump for his actions on the day of the Jan. 6, 2021, riot at the Capitol.

A demonstrator holds a banner outside the Supreme Court, Thursday, Feb. 8, 2024, in Washington. (AP Photo/Jose Luis Magana)

But before both sides rested their cases, the court in many ways appeared entirely poised to rule against the Colorado voters and keep Trump on the state primary election ballot, a potential ruling that could upend dozens of similar lawsuits against the former president.

While the high court has a 6-3 Republican-appointed majority, it was clear by listening to their arguments that each justice, regardless of which president appointed them, expressed some fears that electoral contests, and who gets to participate in them, could become unmanageable if Colorado’s top court decision was allowed to stick.

Here are key takeaways from the oral argument hearing:

Chief Justice Roberts fears a ‘handful’ of states deciding the 2024 election

“It’ll come down to just a handful of states that are going to decide the presidential election,” Chief Justice John Roberts said. “That’s a pretty daunting consequence.”

The case, Trump v. Anderson, stems from six Colorado voters who say Trump is ineligible to appear on ballots because he engaged in an insurrection based on his role in the Jan. 6 Capitol riot. Trump has not been charged with insurrection in any court, though he does face a litany of felony charges, including some relating to his conduct on Jan. 6, 2021.

Despite Jan. 6 being a central component of the Colorado Supreme Court’s argument, the justices often attempted to steer the conversation away from the riot. But Roberts was candid in his questioning about “who decides” what does or doesn’t constitute an insurrection.

“What if in another case where that wasn’t a procedure that was filed, somebody — maybe they’ve got a stack of papers saying ‘Here’s why I think this person is guilty of insurrection,’” Roberts asked the counsel. 

Justice Clarence Thomas, the only justice who was on the bench for the contentious 2000 Bush v. Gore case, another high-profile dispute that had implications for a presidential election, began the latter half of the two-hour-and-15-minute hearing by requesting the attorney for the voters, Jason Murray, provide historical examples of states disqualifying federal officials under Section 3 after the Civil War.

Murray could only come up with one example: a Georgia governor refusing to affirm the election to Congress of a former confederate.

The deciding factor could be the distinction between ‘office’ and ‘officer’Much of the oral argument session hinged on Trump’s argument that Section 3 is not applicable to him because the president is not an “officer of the United States” and the presidency is not an office “under the United States.”

While the justices also asked pointed questions to Trump attorney Jonathan Mitchell over how he derives this legal position, it appeared that the justices could base their ruling on this component. Another potential off-ramp for the court would be to find that Section 3 is not “self-executing” and therefore requires legislation by Congress in order to be used against a candidate running for presidential office.

Justice Ketanji Brown Jackson, an appointee of Democratic President Joe Biden, later steered the conversation to that overriding argument from Trump’s legal team about the meaning of the phrase “officer of the United States.”

“Why didn’t [the framers] put the word president in the very enumerated list in section three? The thing that really is troubling to me is I totally understand your argument, but they were listing people that were barred, and president is not there,” she explained to Murray.

Jackson’s line of questioning appeared to contend with Trump’s argument that the president isn’t considered an “officer” according to the list of offices included in the disqualification clause, though it will be important to watch whether she makes that apparent in a written opinion.

The amendment, written to prevent Confederate rebels who swore an oath to the Constitution before seceding and fighting the nation from running for national office again, was meant to stop the “South from rising again,” Jackson said.

Besides addressing the constitutional question about whether Trump qualifies as an “officer” under Section 3 of the 14th Amendment or whether he was involved in an “insurrection,” Justice Brett Kavanaugh asked Murray whether unelected judges removing someone from a ballot was an infringement on voters’ rights.

“What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice, of letting the people decide?” Kavanaugh asked.

Barrett and Roberts concerned about patchwork of states deciding eligibility

Lastly, the justices gave Colorado’s solicitor general the final arguments before the court, where he argued that nothing in the Constitution strips states of their power to determine whether a candidate should be barred for insurrection.

“This case was handled capably and efficiently by the Colorado courts under a process that we’ve used to decide ballot challenges for more than a century,” state solicitor general Shannon Stevenson said on behalf of Colorado’s secretary of state.

But not only was Roberts concerned about multiple states making decisions about who can be eligible for office — Trump-appointed Justice Amy Coney Barrett also leaned in that direction.

Among Trump’s trio of appointees, including Justices Neil Gorsuch, Kavanaugh, and Barrett, the first two appeared more sympathetic to the arguments that perhaps the framers intentionally did not mention the president in the text of Section 3 and that presidents may be treated differently due to the ambiguities within the text.

Barrett also appeared to be more concerned about the weighted task of finding that Trump did engage in an insurrection on the day of the riot, asking at one point if Murray wanted them to base their decision by merely watching “the video of President Trump on the Ellipse” during his speech on Jan. 6.

And to “come to a decision without any deference to or guidance from lower court fact finding, that’s unusual,” Barrett said.

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER

In order to comply with impending election ballot deadlines, the high court’s decision over this matter could come at a record speed as numerous states prepare to hold primary elections for the presidential nominees for each party by March 5, Super Tuesday.

Because each justice had their own concerns about the consequences that could result from removing Trump from the ballot, the biggest challenge ahead could be to come up with a decision that can score unanimity among all nine jurists, as legal experts have said doing so could be beneficial not only for public trust but for consistency in the law’s application going forward.