U.S. Supreme Court justices on Thursday aggressively challenged whether states can disqualify a presidential candidate from running for office under the so-called insurrection clause in the Constitution as they heard arguments in the Colorado case seeking to disqualify Donald Trump from running for reelection.
A lawyer from Trump’s reelection campaign said the question is decisively “no” because the clause, in Section 3 of the 14th Amendment, is ultimately evaluated by Congress — and only after a candidate has been elected.
“Even 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,” Jonathan Mitchell, a lawyer representing Trump, told the court. The “disability,” meaning the finding that Trump engaged in an insurrection, could be overturned by a two-thirds vote.
But Jason Murray, an attorney for a group of Republican and unaffiliated voters from Colorado seeking to persuade the U.S. Supreme Court to uphold the Colorado Supreme Court’s ruling disqualifying Trump from appearing on the state’s presidential primary ballot because of his role in the Jan. 6, 2021, riot at the U.S. Capitol, argued the exact opposite.
“States have the power to ensure that their citizens’ electoral votes are not wasted on a candidate who is constitutionally barred from holding office,” Murray said. “States are allowed to safeguard their ballots.”
The outcome of the Colorado case could affect similar Trump ballot challenges across the country and derail his 2024 presidential bid.
A majority of the court appeared sympathetic to the Trump campaign’s argument, questioning how the application of the insurrection clause, which bars “officers 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” from holding federal or state office again, would be applied differently from state to state.
Justice Amy Coney Barrett put it plainly: “It just doesn’t seem like a state call.”
Justice Samuel Alito pointed out that in the Colorado case, for instance, the Denver judge who first heard the case agreed to accept the Select U.S. House January 6th Committee’s report on the riot as evidence.
“Another state court could reach an opposite conclusion,” he said.
Alito grew frustrated with Murray at one point as he tried to get the lawyer to address his questions. Murray instead kept trying to redirect the justice to the question whether Trump engaged in insurrection.
“You’re really not answering my question,” Alito said. “Suppose we have two different records. Two different bodies of evidence. Two different rulings on questions of admissibility. Two different standards of proof. Two different sets of fact findings by two different judges, or maybe multiple judges in multiple states. Then what do we do?”
Murray said the record in the Colorado case was complete.
Even Justice Elena Kagan, considered one of the most liberal justices on the court, raised concerns about letting states make determinations about presidential candidates’ ability to run for office under the insurrection clause.
“I think the question that you have to confront is why a single state would decide who gets to be president of the United States,” she said, nodding to how a decision in the Colorado case would likely affect similar legal challenges to Trump’s candidacy across the nation. “It sounds awfully national to me. … One state’s decision to take a candidate off the ballot affects everybody else’s rights.”
Chief Justice John Roberts said he was concerned that if Trump were kept off the ballot in Colorado, there may be attempts in other states to try to disqualify other candidates — “and surely some of those will succeed.”
The oral arguments Thursday extended about an hour longer than their allotted time and mostly glossed over the question of whether Trump “engaged in insurrection.”
Professor Steve Vladeck, the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law, posted on social media that the justices’ lack of questions on whether Trump engaged in insurrection was “not a good sign for a ruling *affirming* the Colorado Supreme Court.”
Justice Ketanji Brown Jackson, a President Biden appointee and the court’s newest justice, asked Mitchell about whether Trump engaged in an insurrection.
“It was not an insurrection,” Mitchell said. “The events were shameful, criminal, violent, all of those things, but did not qualify as insurrection as that term is used in Section 3.”
Justice Brett Kavanaugh, a Trump appointee, said defining insurrection is difficult, especially in the context of the 14th Amendment, which was passed in the wake of the Civil War.
“What does that mean? How do you define it?” he said. “Who decided? Who decides whether someone engaged in insurrection?”
The lawsuit seeking to block Trump from appearing on Colorado’s Republican presidential primary ballot was filed in Denver District Court in September by Citizens for Responsibility and Ethics in Washington, a liberal political nonprofit based in Washington, D.C., on behalf of the group of Colorado Republican and unaffiliated voters. The lead plaintiff is Norma Anderson, a Republican former state lawmaker. The defendant was Colorado Secretary of State Jena Griswold, a Democrat and the state’s top elections official.
The nonprofit, which doesn’t reveal its donors, argued that Trump incited a riot at the U.S. Capitol on Jan. 6, 2021, and is therefore ineligible to appear on the GOP presidential primary ballot in March under Section 3 of the 14th Amendment.
After a week of arguments from Citizens for Responsibility and Ethics and the Trump campaign, Denver District Court Judge Sarah Wallace ruled Nov. 17, that while Trump did incite an insurrection on Jan. 6, he can still appear on Colorado’s 2024 Republican presidential primary ballot because he is not an “officer of the United States.”
“Part of the court’s decision is its reluctance to embrace an interpretation which would disqualify a presidential candidate without a clear, unmistakable indication that such is the intent of Section 3,” Wallace wrote.
Citizens for Responsibility and Ethics in Washington appealed the ruling to the Colorado Supreme Court, arguing that a president is an “officer of the United States.” Trump’s 2024 campaign also appealed, seeking to invalidate Wallace’s finding that Trump engaged in an insurrection and arguing that state courts don’t have the power to rule on 14th Amendment challenges.
The Colorado Supreme Court heard oral arguments in the case Dec. 6 and issued a 4-3 ruling about two weeks later that reversed Wallace’s opinion by finding that Trump is an officer of the United States. The court also agreed that Trump engaged in an insurrection and rejected the notion that Wallace didn’t have authority to even hear the case.
“The record amply established that the events of Jan. 6 constituted a concerted and public use of force or threat of force by a group of people to hinder or prevent the U.S. government from taking the actions necessary to accomplish the peaceful transfer of power in this country,” Justices Monica Márquez, William Hood, Richard Gabriel and Melissa Hart wrote in the Colorado Supreme Court’s 132-page majority opinion. “Under any viable definition, this constituted an insurrection.”
The majority also found that state courts do have jurisdiction in the case.
“Were we to adopt President Trump’s view, Colorado could not exclude from the ballot even candidates who plainly do not satisfy the age, residency and citizenship requirements of the Presidential Qualifications Clause,” the majority wrote in its opinion. “It would mean that the state would be powerless to exclude a 28-year-old, a nonresident of the United States, or even a foreign national from the presidential primary ballot in Colorado.”
The U.S. Supreme Court on Thursday focused less on the “office of the United States” question and more on whether states can exclude a presidential candidate from the ballot under the 14th Amendment, though both liberal and conservative justices on the court at times questioned whether the presidency falls under the provision.
The Trump campaign’s legal team conceded in its U.S. Supreme Court arguments that states can block presidential candidates from appearing on their ballots for not meeting the age, residency or citizenship requirements for the job. Mitchell, Trump’s attorney, said those were much different questions than the insurrection clause question because it’s up to Congress to decide whether the insurrection clause applies to a given candidate.
“A state cannot exclude any candidate for federal office from the ballot on account of Section 3 and any state that does so is … altering the Constitution’s qualifications for federal office,” Mitchell argued.
Colorado Solicitor General Shannon Stevenson briefly spoke before the U.S. Supreme Court on Thursday on Griswold’s behalf. She argued that Colorado could — and would — bar an admitted insurrectionist from appearing on the state’s presidential primary ballot. She called it an “open and shut case.”
“My positions are based on the assumption that under the 14th Amendment the states have the power to enforce Section 3 just like they do other presidential qualifications,” she said.
The Colorado Supreme Court stayed its ruling until the U.S. Supreme Court weighed in on the case. That allowed Trump’s name to still appear on the Republican presidential primary ballot in Colorado since the ballot had to be certified by Jan. 5. (The Trump campaign didn’t appeal the Colorado Supreme Court’s ruling to the U.S. Supreme Court until just before the ballot-certification deadline.)
Military and overseas voters from Colorado have already been sent their ballots. County clerks will begin mailing presidential primary ballots to all other Colorado voters on Monday.
It’s unknown when the U.S. Supreme Court will issue its ruling in the case, Anderson v. Griswold.
“I hope that the Supreme Court quickly tells the American people whether an insurrectionist can serve as president,” Griswold told reporters after the oral arguments Thursday.
Trump in a news conference after the arguments, said “I hope it was well-received.”
It’s possible that if the U.S. Supreme Court rules against Trump before Colorado’s March 5 presidential primary that any votes cast for the former president could be invalidated. That being said, the Colorado GOP has vowed to ignore those results and appoint delegates to the Republican National Committee convention through a caucus and assembly process, which could set up a legal battle with state elections officials.
Trump is separately appealing to state court a ruling by Maine’s Democratic secretary of state, Shenna Bellows, that he was ineligible to appear on that state’s ballot over his role in the Capitol attack. Both the Colorado Supreme Court and the Maine secretary of state’s rulings are on hold until the appeals play out.
The issues may be novel, but Trump is no stranger to the justices, three of whom Trump appointed when he was president. They have considered many Trump-related cases in recent years, declining to embrace his claims of fraud in the 2020 election and refusing to shield tax records from Congress and prosecutors in New York.
In addition to the immunity issue, the court also will hear an appeal in April from one of the more than 1,200 people charged in the Capitol riot. The case could upend a charge prosecutors have brought against more than 300 people, including Trump.
The court last played so central a role in presidential politics in its 5-4 decision that effectively ended the disputed 2000 election in favor of George W. Bush.
Justice Clarence Thomas is the only member of the court who also took part in Bush v. Gore. Thomas has ignored calls by some Democratic lawmakers to step aside from the case because his wife, Ginni, supported Trump’s effort to overturn the 2020 election results and attended the rally that preceded the storming of the Capitol by Trump supporters.
The Associated Press contributed to this report.