U.S. Supreme Court justices last week expressed skepticism about Colorado’s arguments that the state should be able to disqualify former President Donald Trump from its ballot using the 14th Amendment’s “insurrection clause,” according to legal observers.
In a 4-3 opinion in December, the Colorado Supreme Court held that Trump was ineligible to be president under Section 3 of the 14th Amendment. That provision bars those who have “engaged in insurrection or rebellion” against the U.S. government from holding federal offices. Trump’s attorneys later petitioned the nation’s highest court to review the decision.
Most U.S. Supreme Court members seemed poised to conclude that Colorado cannot exclude Trump from its presidential ballot over his role in the Jan. 6, 2021, attack on the U.S. Capitol, according to the ScotusBlog. Other observers agreed with this interpretation.
“In a nutshell, I think the arguments went very well for Trump,” Robert Jarvis, a law professor at Nova Southeastern University in Florida, told Legal Newsline in an email.
“No justice seemed sympathetic to any of the arguments put forward by the respondents, and only Justice (Sonia) Sotomayor seemed at all inclined to give them a second thought.”
Another problem for the attorneys representing Colorado was that the high court justices spent little time discussing the issue of insurrection, according to Jarvis, who added that Section 3 of the 14th Amendment can’t come into play without a finding that the former president engaged in an insurrection, he said.
Based on the justices’ questioning, the court might hold that the 14th Amendment’s Section 3 can’t be used by states to disqualify a candidate without an implementing statute approved by Congress, according to Jarvis.
“That certainly seemed to be how they were leaning at oral argument, and it would be the easiest way for the court to proceed, as it puts the entire issue to rest for this election cycle and avoids having to come to grips with the question of whether Trump engaged in prohibited conduct,” he said.
Jarvis added that such a ruling would also ensure uniformity in the balloting process, since no state would be allowed to decide unilaterally that Trump is disqualified. He expects the high court to decide the issue within a couple of weeks.
“I expect, again based on last week’s oral argument, but also on the primary calendar, that the court will issue an opinion by the end of this month,” he said.
Colorado Secretary of State Jena Griswold said in a statement that it was clear Trump incited an insurrection on Jan. 6.
“I hope the U.S. Supreme Court upholds Colorado’s constitutional right to bar oath-breaking insurrectionists from our presidential primary ballot,” Griswold said. “Our nation deserves to know whether an insurrectionist may hold the country’s highest office.”
After the oral arguments, Trump expressed confidence that his attorneys’ arguments would prevail.
“I think it was well received, I hope it was well received,” Trump said during comments after the hearing. “I hope that democracy in this country will continue because right now we have a very tough situation with all of the radical-left ideas with the weaponization of politics. They weaponize it like it's never been weaponized before.”
During the arguments, Justice Elena Kagan suggested that the disqualification of a presidential candidate raises federal concerns.
“I think that the question that you have to confront is why a single state should decide who gets to be president of the United States,” Kagan said to the attorney representing the Colorado plaintiff. “In other words … this question of whether a former president is disqualified for insurrection to be president again … sounds awfully national to me.”
Chief Justice John Roberts said upholding Colorado’s position could potentially lead to political chaos.
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side,” Roberts said. “And some of those will succeed. A goodly number of states will say, whoever the Democratic candidate is, you’re off the ballot. And others for the Republican candidate, you’re off the ballot. …. That's a pretty daunting consequence.”
Lawsuits to remove Trump from the presidential ballot have been attempted in 34 states, according to a tally on the Lawfare website. Colorado and Maine have taken steps to remove Trump from their ballots, while courts in Michigan, Minnesota and West Virginia have rejected such legal challenges. The Colorado Republican Party has also petitioned the U.S. Supreme Court to review the state Supreme Court's decision.