Rule of Law

Supreme Court prepares hearing on Trump removal from Colorado ballot

Supreme Court oral arguments in Trump ballot access case scheduled for Feb. 8

The U.S. Supreme Court will soon debate whether former President Donald Trump should be removed from Colorado’s primary ballot, the first of what could be several legal challenges by Trump to confront the nine justices.

At issue is whether Trump committed “insurrection” by inciting a crowd to storm the U.S. Capitol Jan. 6, 2021, and whether that would make him constitutionally ineligible to be re-elected president. That, in turn, could block him from appearing on a state primary ballot as a candidate for that office.

Oral arguments are scheduled for Thursday at 10 a.m. ET, and an expedited ruling could come within days or weeks.

The issues have never been tested at the nation’s highest court and are framed as both a constitutional and political fight with enormous stakes for public confidence in the judicial system and the already divisive electoral process.

The wording

The 14th Amendment, Section 3 of the Constitution states, “No person shall… hold any office… under the United States … who, having previously taken an oath, as a member of Congress, or as an officer of the United States… to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

Colorado’s highest court in December ruled that clause covers Trump’s conduct on Jan. 6, 2021, and therefore does apply to a president despite not being explicitly indicated in the text.

“President Trump is disqualified from holding the office of president,” the state court wrote in an unsigned opinion. “Because he is disqualified, it would be a wrongful act under the election code for the secretary to list him as a candidate on the presidential primary ballot.”

The issue could turn on whether the high court interprets “officer of the United States” to apply to a president’s conduct in office.

The arguments

Trump’s legal team in its merits brief said, “The [Supreme] 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.”

The Constitution treats the presidency separately from other federal officers, Trump’s team argued.

“The president swears a different oath set forth in Article II, in which he promises to ‘preserve, protect, and defend the Constitution of the United States’ — and in which the word ‘support’ is nowhere to be found,” like it appears in Section 3, Trump’s team wrote.

But lawyers for the Colorado voters challenging Trump’s eligibility said in response, “The thrust of Trump’s position is less legal than it is political. He not-so-subtly threatens ‘bedlam’ if he is not on the ballot. But we already saw the ‘bedlam’ Trump unleashed when he was on the ballot and lost. Section 3 is designed precisely to avoid giving oath-breaking insurrectionists like Trump the power to unleash such mayhem again.

“Nobody, not even a former President, is above the law,” the brief added, comparing Trump to a “mob boss.”

Also at issue:

– Whether state courts or elected state officials can unilaterally enforce constitutional provisions and declare candidates ineligible for federal office — so-called “self-executing” authority — or is that exclusively the jurisdiction of the U.S. Congress. Also, whether Trump can be disqualified without a thorough fact-finding or criminal trial.

– Whether this issue is a purely “political” one that voters should ultimately decide.

– Whether the U.S. Senate’s acquittal at his impeachment trial over Jan. 6 makes him therefore eligible to seek re-election.

– And whether Section 3 prohibits individuals only from “holding” office, not from “seeking or winning” election to office.

The impact

More than a dozen states have pending legal challenges over Trump’s ballot eligibility.

At least 16 state courts and secretaries of state have already concluded his name can appear on the ballot. Colorado and Maine are the only two so far to keep his name off.

Other states are saying stay tuned. The Oregon Supreme Court earlier this year dismissed a related lawsuit but told a coalition of voters that, based on what the U.S. Supreme Court decides, they can refile again.

In conducting what are expected to be lengthy and contentious oral arguments, the justices will likely be forced to revisit the events of Jan. 6 and the pivotal speech Trump gave to supporters just before Congress was to certify the Electoral College ballots.

Trump has repeatedly claimed he was not trying to incite violence and that his speech was protected by First Amendment guarantees, especially pertinent as the top federal office holder.

The storming of the U.S. Capitol left 140 law enforcement officers injured, and lawmakers and Vice President Pence fled a mob that breached the building.

The Colorado decision has been on pause pending the U.S. Supreme Court’s final ruling.

The state’s 2024 presidential primary ballot with Trump’s name on the Republican ballot has already been certified by the Colorado secretary of state.

But if Trump is ultimately declared ineligible for public office before the state’s March 5 primary, any votes cast in his favor would be nullified.

The Supreme Court has traditionally been reluctant to get involved in overtly political disputes, especially involving elections.

The partisan blowback over the 2000 ruling in Bush v. Gorestill resonates, creating the impression among the public that many of the justices harbor partisan political intentions.

“Sometimes the Supreme Court has no choice but to be involved in the election cases because that is an area where, unlike most, the Supreme Court doesn’t even have discretion over whether it takes the case,” said Brianne Gorod, chief counsel at the Constitutional Accountability Center. 

“There are some voting rights and election cases that the Supreme Court is required to resolve on the merits.”

And beyond …

It is important to note the legal debate over “insurrection” comes to the Supreme Court on a ballot eligibility question.

Special counsel Jack Smith is separately prosecuting Trump for alleged election interference leading up to the Jan. 6 riot, but the former president is not charged specifically with “insurrection” or “rebellion.” The four charges he faces relate to conspiracy and obstruction. Some legal scholars have pointed out Section 3 does not require a criminal conviction to take effect.

The Supreme Court could soon be asked to decide an important component of Smith’s federal case — whether Trump has “absolute immunity” for alleged crimes committed in office.

A federal appeals court is considering the question, and the issue could soon reach the high court on an expedited basis.

Trump’s criminal trial was scheduled for March 4, 2024, but it is likely any Supreme Court consideration of the issues would force a delay, perhaps past the November election.

The former president also faces a state criminal prosecution for alleged election interference in Georgia; a federal criminal prosecution in Florida for alleged mishandling of classified documents that is also led by the special counsel; and a New York state criminal case over allegedly falsifying business records for hush money payments to a porn star.

And there are various civil claims against Trump, from lawsuits: by U.S. Capitol police officers over Jan. 6; alleged fraud involving various Trump-related businesses; and an $83 million defamation judgment stemming from an alleged sexual assault.

It is unclear if any of these cases will eventually reach the U.S. Supreme Court on appeal on the merits. Some may not be considered for years.

In the short term, any further petition with the name “Trump” on the cover could severely strain public confidence in a judicial institution designed to hover above partisan politics.

“I don’t think that the court really follows the political calendar,” said Thomas Dupree, a former top Justice Department attorney in the George W. Bush administration. “I think they’re aware of the fact, obviously, that we’re in an election year, but I don’t think the fact that we’re in an election year is going to be driving the outcomes of any of these decisions.”

The ballot case is Trump v. Anderson (23-719).