Thursday, it looked like the Supreme Court would say that Colorado ballot can’t keep former President Donald Trump off the ticket because he helped plan the attacks on the U.S. Capitol on January 6, 2021.During a more than two-hour oral argument, justices from all political parties questioned whether it would be smart to let each state decide for itself whether a candidate should be on the ballot. They did this because of the impact such decisions would have on the rest of the country and the difficulties courts would face in reviewing those decisions.
After the Civil War,14th Amendment Section 3 was passed to keep people from running for office who had worked for the federal or state government before the war but then stood with the Confederacy. This is what the case is mostly about. If someone swore To defend up the Constitution “as a member of Congress or as an officer of the United States,” but then “engaged in insurrection or rebellion” against the federal government, they “shall not 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,” they can’t be one of those things.
In the fall of 2016, a group of Colorado voters went to court to try to get Trump taken off the ticket under Section 3. Even though a trial judge agreed that Trump had stirred up trouble,It did not take him off the vote because it thought that the presidency was not a “office… under the United States” or a “officer of the United States.”
Section 3 says that Trump can’t be president, so the Colorado Supreme Court said on December 19 that he shouldn’t be on the primary ballot. The court put off deciding so that the Supreme Court could have time to weigh in. On January 5, the justices agreed to do so.
To speak for the former president, lawyer Jonathan Mitchell told the justices that states can’t use Section 3 to stop Trump from running for office, or from being on the ballot, because Section 3 also lets Congress lift the ban that Section 3 would normally put in place after Trump wins the election but before he takes office.
Mitchell told Chief Justice John Roberts that a state could not keep a candidate off the ballot if he openly admitted to being an insurrectionist. This was in response to Roberts’s questioning.
Mitchell said that the case in front of the court was like a state trying to make candidates for Congress live in the state before Election Day, even though they only have to live there until they are chosen. Mitchell said that in both cases, states are “speeding up the deadline to meet a constitutionally imposed qualification.” He warned that upholding the Colorado Supreme Court’s decision would “take away the votes of potentially tens of millions” of people.
The people of Colorado are represented by Jason Murray’s argument. (William Hennessy)
Jason Murray, who was speaking for the voters who were challenging Trump’s placement on the Colorado ballot, started his case by giving the justices a very sad account of what happened on January 6. He said that “our nation’s capitol came under violent assault” for the first time since the War of 1812. Murray went on to say, “For the first time in history, the attack was called for by a sitting president of the United States to stop the peaceful transfer of presidential power.” Murray said that Trump “disqualified himself from public office” by “engaging in an insurrection against the Constitution.” Now, Trump is asking the Supreme Court to make an exception for him because he was president before he ran for office and never held office before.
One of the main points of Thursday’s argument was how Section 3’s ban on people who have “engaged in insurrection” working for the government can be enforced. Can states like Colorado do it themselves, as the voters say, or can it only be done through laws passed by Congress, as Trump says?
Some judges looked to the past and asked Murray to give examples of other times when states have used Section 3 to keep people from running for federal office. Murray brought up an 1868 congressional election in Georgia as well as state elections and candidates who were disqualified by Congress. He said that the lack of examples was “not surprising” because elections back then were different—votes were cast for political parties instead of individual candidates. He concluded that “there wouldn’t have been a way to tell before an election if a candidate was qualified.”
But that answer didn’t make Justice Clarence Thomas feel better. He said that the “plethora of Confederates” still in public life after the Civil War made it likely that this problem would come up.
Justice Brett Kavanaugh agreed with Thomas that there are no cases from history to show that states can’t disqualify candidates on their own under Section 3. He used Griffin’s Case, a lower court ruling made in 1869 by Chief Justice Salmon Chase. In that case, Chase said, Section 3 can only be used by rules made by Congress.
The Supreme Court is not bound by the ruling, but Kavanaugh said that Congress may have had Griffin’s Case in mind when it passed the Enforcement Act of 1870 a year later. This law gave the Department of Justice the power to sue federal officials to remove them from office. Kavanaugh concluded that no state has tried to keep a federal officer from running for office under Section 3 in 155 years because “there’s been a settled understanding” that states don’t have that power. He also said, “Congress can change that,” but they haven’t yet.
Murray argued that no state had tried to reject candidates for federal office because there was no reason for them to do so. He pointed out that by 1876, almost all former Confederates had been granted pardons, so they would no longer need to be kept from voting. He also said that there was no reason to use Section 3 since then because the country had not been through anything like the attacks on January 6.
This line of reasoning didn’t move Justice Samuel Alito. He said that between 1868 when President Andrew Johnson was impeached, and 1998, when President Bill Clinton was impeached, there had been no other presidential impeachments. But, he said, there have been three since 1998: Clinton, and the two impeachments of Trump in 2019 and 2021.
But when it came to execution, the court thought even more carefully about what might happen if the Colorado Supreme Court’s decision was upheld. Justice Elena Kagan was one of the loudest people who spoke out about their worries. She asked why it should be possible for one state to take a candidate off the ticket and, in effect, choose who will be president of the United States. She said, “That sounds awfully national to me.” It didn’t sound like something that each state should decide.
It looked like Justice Amy Coney Barrett agreed. She said that if the court supports the Colorado decision, it will pretty much decide the case for all the other states. Like some of her coworkers, she thought about possible practical issues. She pointed out that the court would have to make its decision based on the facts of the first state court case that came to their attention. So, she asked, how should the court look over those results when the factual record isn’t very clear? She finally said, “It just doesn’t seem like a state call.”
Alito spoke up and said that other practical issues might come up if states have different views on Section 3 issues, like whether a candidate “engaged in insurrection.” Alito then asked, “How should the Supreme Court handle this case?” Would it have to decide on the rules of proof, who would have to prove that the candidate was an insurrectionist, or even hold its trial?
However, both Alito and Roberts were also worried about what Alito called the “cascading” effect that upholding the Colorado case could have. Roberts said that if the Supreme Court rules that Trump can be taken off the ticket in Colorado, it will almost certainly be used to get rid of the Democratic candidate for president. “Some of those will work,” which means that “a handful of states is all that will decide the presidential election.” “That’s a pretty scary result,” Roberts said in the end.
Some of the judges’ worries were calmed by Colorado Solicitor General Shannon Stevenson, who spoke for Colorado Secretary of State Jena Griswold. She told the court that differences between the results of the votes cast in different states are a good thing about democracy and not a problem. She asked the judges to let the process happen even if it gets messy. She made it clear that Congress “can act at any time” if it believes the process has “gone crazy.”
It was not likely that Democratic candidates would be hurt if the court upheld the state court’s ruling, Stevenson said, because “we have to have faith in our system” and the “institutions in place to handle those types of allegations.”
Even though they talked for more than two hours, the justices didn’t seem likely to agree with Stevenson and uphold the Colorado Supreme Court’s ruling.
You can’t be sure of when the justices will make their ruling. The Colorado Supreme Court’s decision is currently on hold, which means Trump will stay on the ballot there unless the justices decide otherwise. However, the court is likely to act quickly to resolve the issue because it is important for other states where challenges to his eligibility are still being considered.
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