CASE PREVIEW

Supreme Court to decide whether insurrection provision keeps Trump off ballot

This article was updated on Feb. 5 at 11:36 a.m.

The Supreme Court will hear oral arguments on Thursday in what is shaping up to be the biggest election case since its ruling nearly 25 years ago in Bush v. Gore. At issue is whether former President Donald Trump, who is once again the front runner for the Republican nomination for president, can be excluded from the ballot because of his role in the Jan. 6, 2021, attacks on the U.S. Capitol.  

Although the question comes to the court in a case from Colorado, the impact of the court’s ruling could be much more far-reaching. Maine’s secretary of state ruled in December that Trump should be taken off the primary ballot there, and challenges to Trump’s eligibility are currently pending in 11 other states. Trump warns that the efforts to keep him off the ballot “threaten to disenfranchise tens of millions of Americans” and “promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead.” But the voters challenging Trump’s eligibility counter that “we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost.”

History behind the case

The dispute hinges on the interpretation of a relatively obscure provision of the Constitution: Section 3 of the 14th Amendment, which (as relevant in this case) provides 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 U.S. Constitution but then “engaged in insurrection or rebellion” against the federal government.

Enacted in the wake of the Civil War, Section 3 was intended to disqualify individuals who had served in the federal (or state) government before the Civil War and had sworn to uphold the Constitution but then supported the Confederacy. The bar on service can only be overcome by a two-thirds vote of both the House of Representatives and the Senate.

Although Section 3 lay dormant for much of its history, there was renewed interest in it after the Jan. 6 attacks on the Capitol. Efforts to rely on Section 3 to disqualify officials for their role in the attacks have been met with varying degrees of success. In 2022, Georgia officials rebuffed a challenge to U.S. Rep. Marjorie Taylor Greene’s eligibility. A state administrative law judge agreed that Greene’s “heated rhetoric may well have contributed to the environment that ultimately led to” the attack on the Capitol, but he concluded that she had not engaged in an insurrection.

In Sept. 2022, a court in New Mexico ruled that Couy Griffin could not serve as a county commissioner because he had participated in the Jan. 6 attack on the Capitol. Griffin, the founder of a group called Cowboys for Trump, was sentenced to 14 days in prison after he was convicted on a charge of entering and remaining on restricted grounds. (The Supreme Court is scheduled to consider Griffin’s petition for review of the state court’s ruling at its conference on Feb. 16.)

Also in 2022, a federal appeals court allowed a dispute over the eligibility of U.S. Rep. Madison Cawthorn to go forward. But by the time the U.S. Court of Appeals for the 4th Circuit issued its ruling in Cawthorn’s case, he had already lost in the primaries.

Earlier efforts to keep Trump off the ballot fell short. In Nov. 2023, for example, the Minnesota Supreme Court threw out an attempt to remove Trump from that state’s ballot. It left the door open, however, for the challengers to try to have Trump excluded from the general election ballot after the primaries.

And on Dec. 27, the Michigan Supreme Court declined to review a lower-court decision that allowed Trump to appear on the state’s primary ballot. As in Minnesota, the lower court’s ruling does not foreclose a new challenge to Trump’s appearance on the general election ballot.

The case now before the Supreme Court was the first one to hold that Trump was disqualified from appearing on the ballot in 2024. It was filed in early September 2023 by six Colorado residents eligible to vote in that state’s Republican primary. The voters are represented by (among other lawyers) Citizens for Responsibility and Ethics in Washington, an ethics watchdog group that sued Trump while he was still in the White House, accusing him of violating the Constitution’s ban on receiving payments from foreign and state governments through his operation of a hotel in Washington, D.C.

After a five-day trial, a Colorado trial court agreed that Trump engaged in insurrection but concluded that Section 3 does not apply to the president. Specifically, it concluded, the presidency is not an “office … under the United States,” and the president is not an “officer of the United States.”

In a ruling on Dec. 19, the Colorado Supreme Court ruled that Trump is ineligible to be president under Section 3, and it barred the Colorado secretary of state, Jena Griswold, from listing him on the primary ballot. But the state supreme court put its ruling on hold to give the Supreme Court time to weigh in, leaving Trump on the ballot for now.

Both Trump and the Colorado Republican Party came to the Supreme Court, asking the justices to review the state supreme court’s ruling. The U.S. Supreme Court granted Trump’s petition for review on Jan. 5 and scheduled oral argument for Feb. 8 – a time when the justices would otherwise be in the middle of their winter recess.

Trump is represented in the Supreme Court by Jonathan Mitchell, the architect of Texas’s controversial six-week abortion ban. He advances a barrage of different challenges, several of them based on the text of Section 3, to the Colorado Supreme Court’s ruling. Trump will remain on the ballot if the Supreme Court agrees with any of these arguments.

The voters urge the justices to uphold the Colorado Supreme Court’s decision and make clear that “[n]obody, not even a former President, is above the law.” “By spearheading a violent attack on the Capitol in violation of his sworn oath to defend the Constitution,” they say, “Trump disqualified himself from holding public office.”

“Officer of the United States”

Trump’s first, and main, argument is that Section 3 does not apply to him because the president is not an “officer of the United States.” In other provisions of the Constitution where the phrase “officer of the United States” appears, Trump notes, it does not apply to the president – for example, the clause that requires the president to “Commission all the Officers of the United States” and the impeachment clause, which lists the president and vice president separately from “civil Officers of the United States.” Moreover, Trump adds, the Supreme Court in 2010 indicated that the phrase applies only to federal officials who are appointed; it does not extend to elected officials like the president.

The voters dismiss this argument, countering that the president has been called the “chief executive officer of the United States” since long before the 14th Amendment was drafted. As with the phrase “office under the United States,” they say, Section 3 simply uses the phrase “of the United States” to distinguish between federal offices, such as the presidency, and state officers.

The voters also discount Trump’s reliance on other provisions of the Constitution. They note that although the appointments clause requires the president to appoint some “officers of the United States,” it also indicates that the Constitution provides for the appointment of other “officers of the United States” – including the president and vice president – by the electoral college. And the impeachment clause, they reason, provides for the impeachment of the president and vice president separately from “all civil Officers of the United States” because (unlike other officials) the president and vice president play both civil and military roles.

Section 3 also does not apply to him, Trump continues, because when he is sworn in the president pledges to “preserve, protect and defend the Constitution” – rather than “support” it, as Section 3 requires.

The voters contend, however, that “Section 3 is about violation of a sworn duty, not about pedantic wordplay.” The oath that the president takes to “preserve, protect and defend” the Constitution is an oath to support the Constitution, they insist. 

The voters add that an interpretation of Section 3 that excludes the president, while still applying to all other officials – including “postmaster or county sheriff” – who took an oath to support the Constitution and then engaged in insurrection would be at odds with the purpose of the provision. Moreover, they suggest, it would be an exception that would apply only to Trump, because “every other President (except, of course, George Washington) had previously sworn a constitutional oath in some other federal or state capacity.”

Trump pushes back against any suggestion that it would be inconsistent with the purpose of Section 3 to hold that the president falls outside its scope. When the 14th Amendment was ratified, he contends, there weren’t any former presidents who had supported the Confederacy, so the drafters would not have had any reason to exclude the president from serving again.

Whether Trump “engaged in insurrection”

Although Trump had contended in an earlier brief that Jan. 6 was not an “insurrection,” he now argues only that Section 3 does not apply to him because he himself did not “engage in” insurrection. Trump never told his supporters to enter the Capitol on Jan. 6, he says, nor did he lead or encourage any of the violence that occurred there that day. To the contrary, he emphasizes, in his remarks at the Ellipse on Jan. 6, he told the crowd to “peacefully and patriotically make your voices heard” and “support our Capitol Police and Law Enforcement.”

Trump adds that even if he didn’t respond when rioters entered the Capitol, that is not, by itself, “engaging” in insurrection. Moreover, he notes, although he has been the subject of several investigations since 2021, he has never been charged with insurrection.

The voters counter that Trump has “no serious defense” on the question whether he “engaged in insurrection.” Trump’s insistence that he merely called for “peaceful and patriotic protest” is inconsistent, they say, with the extensive findings of the trial court, which concluded that Trump’s actions and speech “were the factual cause” of the attack. Trump, they emphasize, “incited violence both explicitly and implicitly during his speech at the Ellipse,” and he continued to do so after the mob had breached the Capitol – for example, identifying former Vice President Mike Pence on social media as someone who “didn’t have the courage to do what should have been done.”

The voters similarly reject Trump’s suggestion that he could not have “engaged in” insurrection because he did not participate in the attacks on the Capitol. They point to opinions interpreting Section 3 by Henry Stanbery, who served as attorney general in 1867, that indicated that someone can “engage in” insurrection without actually taking up arms. Indeed, they note, holding that Section 3 only applies to individuals who themselves commit violence would frustrate “a core purpose of” the provision: “to target leaders rather than foot soldiers. Leaders rarely take up arms themselves,” the voters observe.  

Whether Section 3 operates automatically or instead requires Congress to pass legislation

Trump contends that only Congress can enforce Section 3, by passing laws to do so. Nothing in Section 3 provides any guidance for courts and election officials to use to determine whether someone “engaged in insurrection” and therefore is not eligible to run for office, he observes. If Section 3 were self-executing, however, Trump warns, it would create the risk that courts could make partisan determinations about whether someone is disqualified under Section 3.

Trump points to Griffin’s Case, an 1869 decision by Chief Justice Salmon P. Chase, serving as a judge on a lower court. Chase declined to vacate the conviction of a Virginia man who argued that the judge in his case was a secessionist. Instead, Chase ruled, Section 3 is not self-executing, and it can only be enforced through laws passed by Congress.

Indeed, Trump writes, Congress did enact legislation to enforce Section 3: the Enforcement Act of 1870, which gave the Department of Justice the power to bring lawsuits seeking to disqualify ineligible officials. But that law was repealed in the 1940s, Trump tells the justices.

The voters reject the argument that Section 3 can only be enforced through laws passed by Congress as “beside the point.” They are suing under Colorado state law, they write, seeking to have the Colorado secretary of state enforce federal constitutional requirements.  

But Section 3 works independently, they continue, because it specifically bars anyone who is disqualified from holding public office. If Section 3 did not operate automatically, they write, then the provision allowing Congress to restore eligibility with a two-thirds majority vote would be unnecessary, because Congress could counteract the disqualification as long as a simple majority did not pass any legislation to enforce Section 3.

Griffin’s Case does not support Trump’s argument, the voters insist. Among other things, they note, the decision does not address whether states like Colorado can enforce Section 3 under their own laws, and it overlooks that Chase himself later agreed, during the prosecution of Jefferson Davis, that Section 3 is self-executing.

At what stage of the process does Section 3 apply?

Trump maintains that the text of Section 3 only bars individuals from holding office; it does not prohibit them from appearing on the ballot or winning election. States like Colorado cannot impose their own qualifications for the presidency, he contends, especially when Congress could vote to allow a candidate who might otherwise be ineligible under Section 3 to serve.  

The voters argue that the Constitution gives state legislatures near complete power to decide how to select presidential electors, including the power to allow only eligible candidates to appear on the ballot. They point to the fact that during this election cycle, seven states have already barred media personality Cenk Ugyur, who was born in Turkey, from their primary ballots because he is ineligible to be president. “To say that resolving Trump’s eligibility must wait until tens of millions of Americans have voted would be a recipe for mass disenfranchisement, constitutional crisis, and the very ‘bedlam’ Trump threatens,” they warn.

The electors clause and Colorado’s election code

In addition to being inconsistent with the text of Section 3, Trump argues, the Colorado Supreme Court’s ruling also violates the Constitution’s electors clause, which requires states to appoint presidential electors “in such Manner as the Legislature therefore may direct,” because state election laws do not give state courts the power to order the Colorado secretary of state to remove a candidate from the presidential primary ballot.

Under Colorado’s election code, Trump reasons, state courts can only intervene in ballot disputes when the Colorado secretary of state is about to breach a duty or commit a wrongful act. But there is no wrongful act here, he suggests, because he is eligible to appear on the ballot.

Instead, Trump notes, the state court relied on a provision of Colorado law that gives political parties with qualified candidates the right to participate in primary elections, on the theory that the secretary of state would violate state law if she didn’t remove disqualified presidential candidates from the primary ballot. Because that “is not remotely what the law says,” Trump argues, the Colorado Supreme Court was “arrogating to themselves the power vested in state legislatures to regulate federal elections,” and the justices should reverse.

The voters counter that Trump did not make this argument in the state courts and therefore has lost the right to raise it now. But in any event, they continue, the Supreme Court can only intervene if the state court’s interpretation of state law “unconstitutionally intrude[d] upon the role specifically reserved to state legislatures.” That is not the case here, they argue, because the Colorado Supreme Court “correctly concluded it would be a ‘wrongful act’ to certify on the ballot a candidate who is constitutionally ineligible to hold office.”

Amicus briefs

In addition to the parties to the case, more than six dozen “friend of the court” briefs weigh in on everything from the history of Section 3 to an analysis of efforts to undermine democracy. 

One brief, by a group of former attorneys general that includes Edwin Meese and William Barr (who served during the Trump administration), contends that “[w]hatever one thinks of the behavior of former President Trump in the wake of the 2020 election, Section 3 of the Fourteenth Amendment does not disqualify him from the presidential ballot.” The attorneys general warn that if the Supreme Court were to uphold the Colorado court’s ruling, Republican officials could rule that President Joe Biden is ineligible to appear on the ballot under their own interpretation of what constitutes “insurrection,” and they note that both the Missouri secretary of state and officials in Texas have broached the idea of doing just that. Allowing states to make these kinds of determinations, they conclude, “is a recipe for chaos, with national implications that could be nothing short of ruinous.”

A different brief, by retired Judge J. Michael Luttig – who was on the short list for Supreme Court vacancies during the George W. Bush administration – and other former Republican officials dismisses the suggestion that Section 3 could be used as a partisan tool as an “anti-textual, policy argument” that “has no place in this Court’s constitutional jurisprudence. As this Court held in Dobbs v. Jackson Women’s Health Organization,” they write, “‘we cannot allow our decisions to be affected by extraneous influences,’ including how the public and politicians may react.” But in any event, they say, such an argument turns “the weaponization risk upside down”: Allowing Congress to have “unreviewable power over Section 3 disqualifications” would be the ultimate opportunity for partisan weaponization.

Another brief, by three election law scholars and lawyers, urges the court to decide, one way or the other, whether Trump is eligible to appear on the ballot, rather than resolving the case on some other ground. The failure to decide whether Trump is eligible under Section 3, the brief cautions, would “mark a dangerous refusal by the Court to do its duty” and “risk political instability not seen since the Civil War.”

On Friday the justices expanded the oral argument time from 60 to 80 minutes and granted a request by Colorado Secretary of State Jena Griswold to appear at the oral argument. Mitchell, representing Trump, will have 40 minutes to make his case, while lawyer Jason Murray, representing the voters, will have 30 minutes. Colorado Solicitor General Shannon Stevenson, representing Griswold, will have 10 minutes. (Although the justices have officially allocated 80 minutes for the oral argument, it almost certainly will last much longer — likely somewhere between two and three hours.) 

Before the Supreme Court granted review, the challengers had asked the justices to issue their opinion in the case by Feb. 11, one day before ballots for the presidential primary are mailed out in Colorado. With oral arguments scheduled for Feb. 8, the justices are unlikely to meet the Feb. 11 deadline. Super Tuesday – the day when Colorado and 14 other states, along with American Samoa, will hold their primaries – is March 5, just under one month after the oral argument.

This article was originally published at Howe on the Court.