The Supreme Court appeared ready Thursday to rule for Donald Trump in a challenge from Colorado voters seeking to bar him from appearing on the state’s primary ballot over his efforts to stay in power after his 2020 election loss.
Over more than two hours of oral arguments, the justices expressed concerns over several key arguments in support of the historic election case, in which the Colorado Supreme Court found Trump was disqualified from the presidency under the 14th Amendment.
The state court had cited Trump’s conduct in the lead-up to and during the Jan. 6, 2021, attack on the Capitol, but the Supreme Court on Thursday spent much more time on whether states have the power to disqualify nationwide candidates or whether Congress must weigh in on the issue.
The justices focused on the wording of Section 3 of the 14th Amendment, which aims to prevent people who previously took an oath to support the Constitution from holding office if they have “engaged in insurrection.”
Jason Murray, an attorney representing the Colorado voters, argued that Section 3 applies to the presidency and history is “very clear” that the framers were concerned about “charismatic rebels who might rise through the ranks up to and including the presidency of the United States.”
Justice Ketanji Brown Jackson pointed out that Section 3 doesn’t include that. “But then why didn’t they put the word president in the very enumerated list in Section 3?” Jackson said. “The thing that really is troubling to me is, I totally understand your argument, but they were listing people that were barred, and president is not there.”
Chief Justice John G. Roberts Jr. was among the justices who expressed concerns about states having the power to bar federal candidates from ballots, particularly when there could be different standards or partisan reasons for how those states make the determination.
“I would expect that 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,’” Roberts said. “It will come down to just a handful of states that are going to decide the presidential election. That’s a pretty daunting consequence.”
Justices Clarence Thomas and Brett M. Kavanaugh raised questions that indicated they are open to an argument that Congress must first pass legislation to allow states to bar candidates under Section 3 of the 14th Amendment.
“When you look at Section 3, the term insurrection jumps out and the question is, the questions are: What does that mean? How do you define it? Who decides? Who decides whether someone engaged in it?” Kavanaugh said.
“And you look right at Section 5 of the 14th Amendment,” Kavanagh said, “that tells you Congress has the primary role here.”
Murray said that the justices would create “a number of really difficult issues” if they decided that there is no procedure for determining Trump’s eligibility under the 14th Amendment until after the election.
“And then what happens when members of Congress, on January 6 when they count the electoral votes, say, ‘We’re not going to count electoral votes cast for President Trump, because he’s disqualified under Section 3 under the Electoral Count Reform Act?’” Murray said.
A few briefs in the case made the point that it could disenfranchise voters from certain states and be a constitutional crisis in the making, so that’s “all the more reason to address those issues now in a judicial process on a full evidentiary record so that everybody can have certainty on those issues before they go to the polls,” Murray said.
Kagan told Murray that he needed to confront why Colorado should decide a nationwide issue of who gets to be president of the United States.
“Why should a single state, have the ability to make this determination, not only for their own citizens, but for the rest of the nation?” Kagan said.
In briefs submitted to the court, Trump and Republican members of Congress have argued that the 14th Amendment requires Congress to approve “implementing legislation” to authorize enforcement of Section 3.
“It is entirely up to Congress,” Jonathan Mitchell, an attorney for Trump, told the justices Thursday.