ARGUMENT ANALYSIS

Supreme Court appears unlikely to kick Trump off Colorado ballot

The Supreme Court on Thursday appeared ready to hold that Colorado cannot exclude former President Donald Trump from the ballot based on his role in the Jan. 6, 2021, attacks on the U.S. Capitol. During an oral argument that lasted for more than two hours, justices of all ideological stripes questioned the wisdom of allowing a state to make its own decisions about whether a candidate should appear on the ballot, both because of the effect that such decisions would have on the rest of the country and because of the hurdles that courts would face in reviewing those decisions.

The case centers on Section 3 of the 14th Amendment, which was enacted in the wake of the Civil War to disqualify individuals from holding office who had previously served in the federal or state government before the war but then supported the Confederacy. It provides (as relevant here) that no one “shall 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,” if that person had previously sworn, “as a member of Congress, or as an officer of the United States” to support the Constitution but then “engaged in insurrection or rebellion” against the federal government.

Last fall a group of Colorado voters went to court, seeking to have Trump disqualified under Section 3 from appearing on the ballot. A trial court agreed that Trump had engaged in insurrection, but it nonetheless declined to remove him from the ballot because it concluded that the presidency is not an “office … under the United States,” and the president is not an “officer of the United States.”

The Colorado Supreme Court ruled on Dec. 19 that Trump is ineligible to be president under Section 3 and should not be listed on the primary ballot. The court put its ruling on hold to give the Supreme Court time to weigh in, which the justices agreed to do on Jan. 5.

Representing the former president, lawyer Jonathan Mitchell told the justices that states cannot use Section 3 to bar Trump from running for office – that is, to exclude him from the ballot – because Section 3 also leaves open the possibility that Congress could, by a two-thirds vote, lift the ban that Section 3 would otherwise impose after Trump is elected but before he actually takes office.

And indeed, Mitchell said in response to questioning by Chief Justice John Roberts, under that rationale a state could not bar a candidate from the ballot even if he publicly admitted to being an insurrectionist. 

Mitchell compared the facts before the court to an effort by a state to require candidates for Congress to live in the state before Election Day, when they are only required to live there by the time they are elected. In both scenarios, Mitchell contended, states are “accelerating the deadline to meet a constitutionally imposed qualification.” Upholding the Colorado Supreme Court’s decision, he cautioned, would “take away the votes of potentially tens of millions” of voters.

Jason Murray, representing the voters challenging Trump’s placement on the Colorado ballot, began his argument by painting a grave picture of the events of Jan. 6, telling the justices that “our nation’s capitol came under violent assault” for the first time since the War of 1812. “For the first time in history,” Murray continued, “the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power.” “By engaging in an insurrection against the Constitution,” Murray said, Trump “disqualified himself from public office,” and now argues that the Supreme Court should create a special exception that – as a former president who did not hold office before being elected to the White House – would apply only to him.

A central issue at Thursday’s argument was whether the question of how Section 3’s ban on government service by individuals who have “engaged in insurrection” can be enforced – do states like Colorado have the power to enforce it themselves, as the voters contend, or (as Trump argues) can it only be enforced through laws passed by Congress?

Some justices looked to history, pressing Murray to provide examples of other scenarios in which states have relied on Section 3 to disqualify candidates for federal office. Murray pointed to an 1868 congressional election in Georgia, as well as to state elections and candidates disqualified by Congress, and he noted that the dearth of examples was “not surprising” because elections operated differently then, with ballots for political parties rather than individual candidates. Therefore, he reasoned, “there wouldn’t have been a process for determining before an election whether a candidate was qualified.”

But that answer did not mollify Justice Clarence Thomas, who observed that the “plethora of Confederates” still present in public life in the post-Civil War era would suggest that this issue would come up.

Justice Brett Kavanaugh echoed Thomas’ emphasis on the absence of any historical examples as evidence that states do not have the standalone power to disqualify candidates under Section 3. He cited Griffin’s Case, an 1869 decision by Chief Justice Salmon Chase, serving on a lower court. In that case, Chase ruled, Section 3 can only be enforced through laws passed by Congress.

Although the decision is not binding on the Supreme Court, Kavanaugh suggested that one year later Congress had Griffin’s Case in mind when it enacted the Enforcement Act of 1870, which gave the Department of Justice the power to bring lawsuits seeking to disqualify federal officials. For 155 years, Kavanaugh concluded, no state has attempted to disqualify a federal officer from the ballot under Section 3 because “there’s been a settled understanding” that states don’t have that power. Moreover, he added, “Congress can change that” but hasn’t done so.

Murray pushed back, suggesting that no state had tried to disqualify candidates for federal office because there had not been a need to do so. Virtually all former Confederates had received amnesty by 1876, so that there would no longer be a need to disqualify them from the ballot, he observed. And since then, he contended, there had been no reason to invoke Section 3 because the country had not previously experienced anything like the Jan. 6 attacks.

Justice Samuel Alito was unmoved by this line of argument. He observed that there were no presidential impeachments between 1868 – when President Andrew Johnson was impeached – and the impeachment of President Bill Clinton in 1998. But since 1998, he stressed, there have been three – Clinton and the two Trump impeachments in 2019 and 2021.

But on the question of enforcement, the court focused even more specifically on the possible implications of upholding the Colorado Supreme Court’s decision. Justice Elena Kagan was among the most vocal in expressing her concerns. Why, she queried, should one state be able to disqualify a candidate from the ballot and, in so doing, effectively determine who becomes the president of the United States? Rather than sounding like an issue for an individual state to decide, she said, that “sounds awfully national to me.”

Justice Amy Coney Barrett appeared to agree. If the court upholds the Colorado ruling, she posited, it will as a practical matter decide the issue for all the other states. Like some of her colleagues, she envisioned possible logistical problems, observing that the court would have to make its decision using the facts developed in whatever state-court case made its way to them first. In a scenario in which the factual record isn’t well developed, she asked, how should the court review those findings? It “just doesn’t seem like a state call,” she concluded.

Alito chimed in, noting that other logistical problems could arise if states reach different conclusions about issues arising from Section 3, such as whether a candidate “engaged in insurrection.” In that case, Alito asked, how should the Supreme Court proceed? Would it need to decide on rules of evidence, determine who would bear the burden to show that the candidate was an insurrectionist, or even hold its own trial?

But even more broadly, both Alito and Roberts were wary of what Alito characterized as the potentially “cascading” effect of upholding the Colorado decision. If the Supreme Court were to rule that Trump can be removed from the Colorado ballot, Roberts said, it will undoubtedly lead to efforts to disqualify the Democratic candidate for president. “And some of those will succeed,” leading to a scenario in which only a “handful of states … are going to decide the presidential election. That’s a pretty daunting consequence,” Roberts concluded.

Colorado Solicitor General Shannon Stevenson, arguing on behalf of Colorado Secretary of State Jena Griswold, tried to allay some of the justices’ fears. She told the court that disparities between the ballots in different states are a feature, rather than a bug, of the democratic process, and she urged the justices to allow the process to play out even if it becomes messy. “Congress,” she stressed, “can act at any time if it thinks” the process has truly “run amok.”

And Stevenson downplayed the possibility of retaliation against Democratic candidates if the court were to uphold the state court’s decision, arguing that “we have to have faith in our system” and in the “institutions in place to handle those types of allegations.”

But after more than two hours of argument, the justices appeared uninclined to agree with Stevenson and leave the Colorado Supreme Court’s decision in place.

There is no way to know when the justices will issue their decision. The Colorado Supreme Court’s ruling is currently on hold, so Trump will remain on the ballot there unless the justices decide otherwise, but the court is nonetheless likely to act relatively quickly to resolve the issue because of its significance for other states where challenges to his eligibility are pending.

This article was originally published at Howe on the Court.