The US supreme court appeared skeptical of a Colorado decision removing Donald Trump from the state’s primary ballot during nearly two hours of oral arguments on Thursday. It seems poised to rule Trump is not constitutionally disqualified from running for president.
The case is perhaps the most high-stakes legal dispute to arrive at the court this century and thrusts the court to the center of a politically charged election. A majority of justices, including some from the court’s liberal wing, voiced concern about the chaos that would ensue if they allowed states to decide whether to disqualify candidates from the ballot.
“What do you do with the, what would seem to be, the big, plain consequences of your position? If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side and some of those will succeed,” the chief justice, John Roberts, asked Jason Murray, the lawyer who argued on behalf of the Colorado voters.
“I would expect that a goodly number of states will say whoever the Democratic candidate is, you’re off the ballot, and others, for the Republican candidate, you’re off the ballot. 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 added.
Elena Kagan and Ketanji Brown Jackson, two of the court’s liberal justices, echoed Roberts’ line of questioning. While the constitution grants states an enormous amount of power, Kagan said to Murray, there are some national questions where states are not the “responsitory of authority”. “What’s a state doing deciding who other citizens get to vote for for president?,” she said.
The case, Donald J Trump v Norma Anderson et al, came about after six Colorado voters filed a lawsuit last year alleging Trump was ineligible to run for president under a little-used provision of the constitution’s 14th amendment. The provision says that any member of Congress or officer of the United States who takes an oath to defend the constitution and subsequently engages in insurrection is barred from holding office. The ban can only be overridden by a two-thirds vote by both chambers of Congress.
Trump’s conduct during the January 6 Capitol attack disqualifies him from holding federal office, the Colorado voters claimed in their suit, filed last year in state court. After a five-day trial, a judge found Trump had engaged in insurrection, but was not an “officer of the United States” and declined to remove him from the ballot. In a 4-3 decision in December, the Colorado supreme court reversed that ruling and barred him from the ballot. The US supreme court agreed to hear the case in January.
Much of Thursday’s argument focused on whether states have the power to enforce section 3 on their own and exclude a candidate from the ballot without Congress first passing a statute with an enforcement mechanism.
Aside from a single question from Jackson, there was no discussion of Trump’s conduct on 6 January 2021 and whether it constituted an insurrection. Instead, nearly all of the justices suggested that a state could not disqualify Trump from the ballot absent some action from Congress.
“I guess my question is why the framers would have designed a system that could result in interim disuniformity in this way where we have elections pending and different states suddenly saying, ‘you are eligible, you’re not’ on the basis of this kind of thing,” Jackson said.
While there have been several suits seeking to remove Trump from the ballot, only Colorado and Maine have done so thus far. A Maine judge last month ordered the secretary of state there to hold off on excluding Trump until the US supreme court issued a decision.
It is generally believed that Trump has the upper hand at the court, where conservatives have a 6-3 supermajority and Trump nominated three of the justices.
In their briefing to the supreme court, Trump’s lawyers have claimed there will be “chaos and bedlam” in the US if a leading presidential candidate is blocked from the ballot. They gave an array of arguments to the justices for why he should not be disqualified, including that the word “officer” does not apply to the president and that he did not engage in insurrection.
A decision upholding the Colorado supreme court’s ruling would not automatically remove Trump from the ballot across the country. While some states have rebuffed efforts to remove Trump from the primary ballot, a supreme court saying Trump can be disqualified would probably set off a flurry of fast challenges in state courts and other tribunals to disqualify him from the ballot in the general election.
“In our system of ‘government of the people, by the people, [and] for the people’, the American people – not courts or election officials – should choose the next President of the United States,” Trump’s lawyers wrote.
The Colorado voters, backed by the left-leaning non-profit Citizens for Responsibility and Ethics in Washington (Crew), argue that it is absurd to claim the 14th amendment does not apply to the presidency and that it would be a danger to democracy to allow him to hold office again.
“The reason we’re here is [Trump tried] to disenfranchise 80 million Americans who voted against him, and the constitution doesn’t require that you be given another chance,” Murray said.
The 14th amendment was enacted after the civil war to bar former Confederates from holding office and has never been used to bar a presidential candidate. In 2022, the amendment was used to remove a New Mexico county commissioner from office, the first time it had been used that way in a century.
The case marks the court’s most direct intervention in a presidential election since its controversial decision in Bush v Gore in 2000. Seeking to preserve its reputation as an apolitical body, the court is usually hesitant to get involved in heated political disputes, but the arrival of the Trump case makes the court’s intervention in the most controversial of political cases unavoidable. It comes as public confidence in the court continues to decline amid a series of ethics scandals and politically charged decisions.
While the court appeared poised to allow Trump to remain on the ballot, the rationale it chooses will be significant. A decision on procedural grounds that does not definitively say whether or not Trump is disqualified could lead to chaos after the election if Trump wins, Murray warned.
“If this court concludes that Colorado did not have the authority to exclude President Trump from the presidential ballot on procedural grounds, I think this case would be done, but I think it could come back with a vengeance,” he said. “Because ultimately members of Congress may have to make the determination after an election if President Trump wins, about whether or not he’s disqualified from office and whether to count votes cast for him.”
