The U.S. Supreme Court’s oral arguments Thursday were ostensibly about whether former President Donald Trump was eligible to appear on the Republican primary ballot in Colorado on March 5, but the reality is that Trump will appear on the Colorado ballot no matter what the justices decide.The broader picture though is whether their judicial decision will impact other states’ ballots.
The Colorado Supreme Court ruled in December that Section 3 of the 14th Amendment disqualified Trump from being president again. The ruling stipulated that its decision would be stayed if Trump’s lawyers appealed.
Upon appeal, the Colorado Secretary of State was “required to include President Trump’s name on the 2024 presidential primary ballot, until the receipt of any order or mandate from the Supreme Court.”
Colorado law required Secretary of State Jena Griswold to certify names on the ballot by January 5, and hence, Trump has already been certified.
The ballots have been printed with Trump’s name, and voters can expect to receive them within days. All Colorado registered voters receive ballots by mail automatically.
In other words, even if the Supreme Court were to deem Trump ineligible, it would be too late to exclude him from Colorado’s March 5 primary ballot.
But if the justices were to rule Trump ineligible before Colorado’s primary, Colorado would not count votes cast for Trump even though he is on the ballot.
If the court were to rule Trump ineligible after the March 5 primary but before Election Day on November 5, “his name would not appear on the 2024 general election ballot,” Griswold said.
While the case the Supreme Court agreed to hear stems specifically from the Colorado decision, and the justices could rule narrowly, they have the ability to resolve the matter which could have broader implications for Trump’s eligibility in all 50 states. If they rule quickly that he is ineligible, states that vote later could keep Trump off their primary ballots.
Justices across the ideological spectrum questioned several aspects of the Colorado ruling. The Supreme Court seemed inclined to issue a lopsided decision rejecting a challenge to former President Donald Trump’s eligibility to hold office again.
The 14th amendment insurrection clause has been used in these state ballot cases, but on Thursday, there was very little discussion of the January 6 riot on the Capitol or of Trump’s role in it.
A majority of the justices indicated that individual states may not disqualify candidates in a national election unless Congress first enacts legislation.
Chief Justice John G. Roberts Jr. asked a series of questions reflecting what seemed to be an emerging consensus that the 14th Amendment was not meant to permit states to determine whether a candidate was an ineligible insurrectionist.
“The whole point of the 14th Amendment was to restrict state power, right?” Roberts asked, adding that the Trump challengers’ contrary argument was “a position that is at war with the whole thrust of the 14th Amendment.”
Chief Justice Roberts noted that the Trump challengers’ position would have empowered the former Confederate states to determine whether candidates were disqualified from holding federal office.
The 14th Amendment was adopted to constrain states’ rights and empower the federal government, the chief justice said, and it is “the last place you’d look for authorization for the states, including Confederate states, to enforce the presidential election process.”
Several justices indicated that the court should issue a broad decision resolving not only whether Trump may appear on the Colorado primary ballot but also whether he is eligible to run in the general election and to hold office at all. The court has fast-tracked the case.
The arguments focused on two issues raised by Trump’s lawyer, Jonathan Mitchell - that the president is not an “officer of the United States” and so is not covered in Section 3 of the 14th Amendment, and that disqualifying Trump under the amendment would require some further act of Congress.
Jason Murray, who is representing the Trump challengers in Colorado, argued that what took place at the Capitol on January 6 was an insurrection. He also rebutted two of Mitchell’s chief arguments, asserting that presidents are officers of the United States under the 14th Amendment and can be disqualified for engaging in insurrection.
He added that states, not just Congress, have the power to “safeguard their ballots” and disqualify candidates who are too old, who are improperly running for extra terms or, as in Trump’s case, engaged in insurrection.
Trump lawyers have grounded their argument in a unifying theme that the election should be decided by the voters.
“The court should put a swift and decisive end to these ballot-disqualification efforts, which threaten to disenfranchise tens of millions of Americans and which promise to unleash chaos and bedlam if other state courts and state officials follow Colorado’s lead and exclude the likely Republican presidential nominee from their ballots,” Trump’s brief reads.
Two of the court’s three liberal justices, Elena Kagan and Ketanji Brown Jackson, joined their conservative colleagues in displaying doubts about allowing a state to decide who can run for a national office.
Justice Kagan expressed concern that by allowing Trump to be removed from the Colorado ballot, it could set a precedent of giving individual states “extraordinary” power in national elections.
Justice Jackson pointed out that the text of the amendment did not explicitly include “president” in the list of offices that could face disqualification for engaging in insurrection. That was because the amendment, she argued, was not initially intended to keep Southern rebels from running for president, but rather to stop them from using their popularity in their home states to seek local offices and get back into power by running for Congress.
Chief Justice John G. Roberts Jr. repeatedly raised the prospect that numerous other states could retaliate by removing a Democratic candidate from their ballots by saying another president had engaged in an insurrection.
Justice Samuel A. Alito Jr. also kept returning to that point, raising the specter of “unmanageable consequences.”
Lawyers for the Trump challengers argued that the courts could stop an abuse of any process.
“This court can write an opinion that emphasizes how extraordinary ‘insurrection against the Constitution’ is and how rare that is because it requires an assault not just on the application of law, but on constitutionally mandated functions themselves like we saw on January 6,” Murray said.
Justice Brett Kavanaugh asked Murray whether the position that Trump cannot be president again would be harmful for democracy since it would effectively disenfranchise people seeking to vote for him.
Murray replied that the purpose of the constitutional safeguard is to protect democracy not just for the next cycle but for generations to come.
“The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution doesn’t require that he be given another chance,” he said.
It was astounding how little the justices and lawyers talked about whether Trump’s actions on January 6 constituted an act of insurrection when it was the cog in the wheel in the Colorado decision.
Murray opened his arguments by blaming Trump for engaging in insurrection, but the justices sidestepped that.
None of the more than 90 counts in four separate criminal cases against Trump accuses him of taking part in an insurrection even though the House select committee that investigated January 6 recommended Trump be charged with the federal insurrection count.
Outside the Supreme Court, Senator Tommy Tuberville (R-AL) accused democrats of “desperately trying to stop the American people from deciding who will be our next president.”
Tuberville was joined by Senator Marsha Blackburn (R-TN), who posted on social media, “The Left’s nearly decade-long witch hunt to take down Trump must end.”
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