SCOTUS appears dubious of lawsuit by Colorado GOP, indy voters seeking to bar Trump from ballot

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February 9, 2024, 4:35 pm

Protesters displayed a banner reading “Remove Trump” in front of the U.S. Supreme Court Thursday, Feb. 8, 2024, as justices heard oral arguments in a case questioning whether former President Donald Trump could be barred from Colorado’s presidential primary ballot because he violated the Constitution’s 14th Amendment on Jan. 6, 2021. (Ashley Murray/States Newsroom)

U.S. Supreme Court justices heard oral arguments Thursday in a landmark case over whether former President Donald Trump should be barred from the 2024 presidential ballot.

A majority of the justices, including liberal members of the court, expressed skepticism about a ruling from the Colorado Supreme Court that said Trump, the GOP presidential frontrunner, is disqualified from appearing on the state’s presidential primary ballot.

A main point of skepticism that emerged through the justices’ exchanges with attorneys for Trump and the plaintiffs was whether states have the authority to disqualify federal candidates.

Other apparent objections to the Colorado decision concerned whether the constitutional provision at issue applies to the president, who can enforce it, the implications for democracy if a candidate can be barred from the ballot, the “disuniformity” that would result if states disqualified candidates using different standards, and the definition of “insurrection.”

The hearing was over a Colorado Supreme Court ruling from December that found Trump to be disqualified from holding the office and ordered Colorado Secretary of State Jena Griswold not to include Trump’s name on the Colorado presidential primary ballot.

The ruling came in response to a lawsuit that was filed in state district court in September by the watchdog group Citizens for Responsibility and Ethics in Washington on behalf of six Colorado voters, who argued Trump is disqualified from office under Section 3 of the 14th Amendment. Section 3, ratified after the Civil War, prohibits someone who took an oath to support the Constitution and then “engaged in insurrection” from holding office again.

“Donald Trump tried to overthrow the results of the 2020 presidential election,” the lawsuit said. “His efforts culminated on January 6, 2021, when he incited, exacerbated, and otherwise engaged in a violent insurrection at the United States Capitol by a mob who believed they were following his orders, and refused to protect the Capitol or call off the mob for nearly three hours as the attack unfolded.”

The district court judge, relying on a five-day evidentiary hearing with expert testimony and extensive briefs, determined that Trump had engaged in insurrection but that Section 3 doesn’t apply to presidents.

The Colorado Supreme Court in a 4-3 ruling affirmed the district court’s finding that Trump engaged in insurrection but, in a reversal of the district court’s order, also concluded that Section 3 applies to presidents.

Trump appealed that decision to the U.S. Supreme Court, which in taking the case, called Trump v. Anderson, framed the scope of its review in broad terms: “Did the Colorado Supreme Court err in ordering President Trump excluded from the 2024 presidential primary ballot?”

Its answer to that question will have profound implications throughout the country that go beyond this year’s election. Efforts to disqualify Trump from the ballot have emerged in most states, and he has already been disqualified in Maine.

Jonathan Mitchell, Trump’s attorney, began the hearing Thursday by saying, “The Colorado Supreme Court’s decision is wrong and should be reversed for numerous independent reasons.”

Mitchell argued that Section 3 didn’t apply to Trump “because the president is not an officer of the United States as that term is used throughout the Constitution.”

He also argued that a state barring a federal candidate from the ballot before Congress has the opportunity to relieve the candidate of Section 3 disqualification, as the provision allows for, amounts to an improper alteration of constitutional qualifications for federal office.

“A state cannot exclude any candidate for federal office from the ballot on account of Section 3,” Mitchell said, adding later, “A state is not allowed to implement or enforce Section 3 of the 14th Amendment unless and until Congress enacts implementing legislation.”

In a sign of hostility to the plaintiffs’ case from the liberal side of the court, Justice Ketanji Brown Jackson noted that Section 3 appeared to exempt the office of the president from the positions an insurrectionist is barred from holding.

“The word ‘president’ or ‘vice president’ does not appear specifically on that list,” she said during an exchange with Mitchell.

Mitchell agreed, and he also argued that an insurrectionist president, unlike lower office-holders who have engaged in insurrection, is not covered by Section 3.

The plaintiffs’ attorney, Jason Murray, tried to persuade the justices that Section 3 must be enforced as a safeguard against the kind of anti-constitutional violence that occurred on Jan. 6.

“For the first time in history, the attack was incited by a sitting president of the United States to disrupt the peaceful transfer of presidential power. By engaging in insurrection against the Constitution, President Trump disqualified himself from public office,” he said.

But many of the justices seemed reluctant to affirm that conclusion.

Justice Brett Kavanaugh, echoing several colleagues, suggested Congress, not individual states, has the primary role in stating how Section 3 should be enforced.

“You look at Section 3, the term ‘insurrection’ jumps out and the questions are, what does that mean? How do you define it? Who decides whether someone is engaged in it?” he said.

Much of the discussion hinged on the so-called Griffin’s case ruling from 1869, in which Chief Justice Salmon P. Chase, presiding as a circuit justice, ruled that Section 3 required congressional action to be operative. Trump’s legal team and several justices expressed approval of the ruling. Many contemporary legal scholars dismiss the ruling as misguided.


Dave Williams, the chair of the Colorado Republican Party, was present in the courtroom and told Newsline afterward that he was confident the court would rule in Trump’s favor, regardless of the grounds on which it bases its decision.

“I guess I don’t have a specific way for them to resolve it,” Williams said. “Ultimately my interest is in ensuring people can vote for Donald Trump. However they get there makes no difference to me.”

Norma Anderson, the lead plaintiff in the Colorado case and a former Republican Colorado House speaker, said in an interview after the hearing that the justices were “hard to read.”

“I think it’s 50-50,” Anderson said. “They were very inquisitive. I think what they were trying to figure out is, ‘Is this really my job to do?’”

Critics of the lawsuit, even some Trump opponents, have argued that disqualification of Trump would be a violation of democratic principles, and they say defeat at the ballot box is the best way to bar him from office. Proponents of disqualification argue that the framers of Section 3 intended it as a form of constitutional self-defense against precisely the kind of threat Trump represents and that the provision itself is meant to preserve democracy.

The plaintiffs, besides Anderson, include former Republican U.S. representative from Rhode Island Claudine Schneider, who now lives in Colorado; Denver Post columnist and Republican activist Krista Kafer; Michelle Priola, Kathi Wright, and Christopher Castilian.

The court is expected to issue a ruling in the case sometime before Colorado’s March 5 presidential primary election.

Editor’s note: This story first appeared on Colorado Newsline, which is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Colorado Newsline maintains editorial independence. Contact Editor Quentin Young for questions: Follow Colorado Newsline on Facebook and Twitter.

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