Supreme Court signals unlikely to let Colorado kick Trump off ballot
WASHINGTON — The Supreme Court on Thursday signaled deep skepticism that Colorado had the power to remove former President Donald Trump from the Republican primary ballot because of his actions trying to overturn the 2020 election results.
A majority of the justices appeared to think during the two-hour argument that states do not have a role in deciding whether a presidential candidate can be barred from running under a provision of the Constitution's 14th Amendment that bars people who "engaged in insurrection" from holding office.
Justices from across the ideological spectrum raised concerns about states reaching different conclusions on whether a candidate could run, and several indicated that only Congress could enforce the provision at issue.
Throughout the argument, the justices barely touched upon the meaty issue at the center of the case: whether Trump participated in an insurrection. The ruling is unlikely to hinge on that question.
The Supreme Court, which has a 6-3 conservative majority, is tackling several novel and consequential legal issues concerning Section 3 of the 14th Amendment, enacted in the wake of the Civil War. Colorado voters filed a lawsuit saying Trump should be barred because of his efforts to defy the 2020 election results in events that led to the Jan. 6 attack on the Capitol.
Section 3, aimed at preventing former Confederates from returning to power in the U.S. government, says anyone who had previously served as an “officer of the United States” and was then involved in an insurrection would be barred from holding federal office.
But during the oral argument, justices pushed back on the idea that the provision can be enforced by states.
Chief Justice John Roberts said that the "whole point" of the 14th Amendment was to restrict state power after the Civil War in an attempt to bring Confederate states into line and questioned why it would give states the ability to kick a presidential candidate off the ballot.
"Wouldn't that be the last place that you'd look for authorization for the states, including Confederate states, to ... enforce the presidential election process?" he asked.
Taking a similar approach, conservative Justice Brett Kavanaugh said it was clear from the language of the 14th Amendment that "Congress has the primary role here," citing a Civil War-era ruling much discussed in the briefing that marked an early interpretation of the provision.
Justices also wondered about the practical implications of allowing the provision to be interpreted on a state-by-state basis.
"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 liberal justices, told Jason Murray, the lawyer representing Colorado voters.
"It seems quite extraordinary, doesn't it?" she added.
Justice Amy Coney Barrett, a conservative, echoed that sentiment, saying that "it just doesn't seem like a state call."
Conservative Justice Samuel Alito was among those who called states reaching differing conclusions on the issue an "unmanageable situation."
Roberts predicted that if the Colorado ruling was upheld, some states would then kick other presidential candidates off the ballot, both Republicans and Democrats, and sow chaos in presidential elections.
"That's a pretty daunting consequence," he said.
Justice Ketanji Brown Jackson, one of the liberals, appeared to agree, asking why the authors of the 14th Amendment “would have designed a system that could result in interim dis-uniformity in this way, where we have elections pending and different states suddenly saying, ‘You are eligible, you’re not.’”
The justices also touched upon whether Section 3 needs no implementing legislation, as the Colorado plaintiffs claim.
If no legislation is required, Alito wondered if a military officer could simply refuse to follow the orders of a president who was deemed to have engaged in insurrection.
In one of the rare occasions in which the definition of insurrection was broached, Alito asked whether a president who sought federal funds for a country that the United States regards as an enemy could be found to have engaged in insurrection.
He appeared to be probing the difficulty of determining what counts as an insurrection and whether the process could be abused. At least one Republican has suggested that President Joe Biden could have violated Section 3 by failing to secure the border.
The Colorado Supreme Court ruled in December that Trump could be thrown off the Republican primary ballot but put its decision on hold while he appealed.
The case would have broad implications if Trump loses, because other states could follow suit, placing hurdles in the way of his attempt to regain the presidency this fall. State officials in conservative-controlled governments have also warned they could seek to remove Biden from the ballot in response.
Trump, who has often attended recent court hearings in the various civil and criminal cases he is involved in, was not in the courtroom Thursday.
"It’s unfortunate that we have to go through a thing like that. I consider it more election interference by the Democrats," Trump told reporters afterward, adding that he had followed the arguments.
The legal challenge was filed on behalf of six Colorado residents, four of whom are Republicans, by the left-leaning government watchdog group Citizens for Responsibility and Ethics in Washington and two law firms.
They allege in court papers that Trump “intentionally organized and incited a violent mob to attack the United States Capitol in a desperate attempt to prevent the counting of electoral votes cast against him.”
Trump’s lawyers have offered several grounds for tossing out the lawsuit. They argue that the president is not an officer of the U.S., that Trump did not engage in insurrection and that only Congress can enforce Section 3.
The conservative majority includes three justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — appointed by Trump. Another conservative, Justice Clarence Thomas, has faced scrutiny over his involvement in the case because of the role of his wife, conservative political activist Virginia “Ginni” Thomas, in backing Trump’s challenge to the election results. Some Democrats had asked Thomas to recuse himself.
Despite the court’s conservative majority, it has regularly handed losses to Trump since he left office.
Interest in the Colorado case was heightened when Maine’s top election official concluded that Trump was ineligible to appear on the Republican primary ballot in that state, too. Like the Colorado dispute, that case was put on hold, meaning Trump remains on the ballot for now in both states.
The Supreme Court is hearing the Colorado case on an expedited schedule, with a ruling expected within weeks. Colorado is one of more than a dozen states that have their primary elections on March 5.