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The Supreme Court appeared likely to reject an attempt to remove Donald Trump from the 2024 presidential ballot, with justices across the ideological spectrum suggesting Thursday that Congress and not individual states must set the standards before a presidential candidate can be disqualified for engaging in insurrection.
Colorado’s Supreme Court, invoking a constitutional provision enacted after the Civil War, barred Trump in December from the state’s presidential ballot after finding he engaged in insurrection by inciting his followers to attack the U.S. Capitol on Jan. 6, 2021, to stop certification of President Biden’s victory in the November 2020 election.
Trump appealed, and the U.S. Supreme Court expedited its proceedings ahead of Colorado’s March 5 primary election.
“If Colorado’s position is upheld, surely there will be disqualification proceedings on the other side,” said Chief Justice John Roberts, suggesting a cycle of partisan retaliation by states across the country. “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.”
Jason Murray, representing six Republican and independent voters from Colorado who filed suit to disqualify Trump, dismissed such fears. The disqualification provision “has been dormant for 150 years. And it’s because we haven’t seen anything like Jan. 6th since Reconstruction,” he said. “Insurrection against the Constitution is something extraordinary.”
Impeachment once was, too, countered Justice Samuel Alito, with none between those of Presidents Andrew Johnson in 1868 and Bill Clinton in 1998. “And in fairly short order, over the last couple of decades, we’ve had three,” he said. “ So I don’t know how much you can infer from that.”
A ruling in favor of Trump likely would extinguish similar efforts playing out in a variety of states, including in Maine, where a December decision from Secretary of State Shenna Bellows, a Democrat, barring Trump from the ballot is on hold until the Supreme Court decides the Colorado dispute. Several other attempts to ban Trump from the ballot have flagged in the courts.
“In watching the Supreme Court today, I thought it was a very beautiful process,” said Trump, the front-runner for the 2024 GOP presidential nomination, after the hearings from his home in Florida. “I thought the presentation today was a very good one. I think it was well received. I hope it was well received.”
Krista Kafer, one of the Colorado Republican voters who challenged Trump’s eligibility, attended the arguments. “If the court rules for us it could be disruptive,” she said, because of potential disarray over where Trump appeared on the ballot. “But if they don’t rule for us, it would be dangerous because it allows what Trump did to become a new normal.”
During the hearing, Trump lawyer Jonathan Mitchell, appealing the Colorado decision, focused on technical arguments that a constitutional provision barring from public office former officials who engaged in insurrection or rebellion didn’t apply to the 45th president, and that states lacked authority to enforce it without congressional authorization.
But asked flat-out about Jan. 6, Mitchell denied that the day’s events met the Constitution’s disqualification standard. “For an insurrection, there needs to be an organized, concerted effort to overthrow the government of the United States through violence,” he said.
Asked Justice Ketanji Brown Jackson: “So your point is that a chaotic effort to overthrow the government is not an insurrection?”
“This was a riot, not an insurrection,” Mitchell said. “The events were shameful, criminal, violent, all of those things, but it did not qualify as insurrection.” Trump, he said, bore no responsibility for his supporters’ violent assault.
For most of the two-hour argument, however, justices showed little desire to debate the events of Jan. 6. Instead, they focused on how Section 3 of 14th Amendment, which was ratified in 1868 to prevent former officeholders who defected to the Confederacy from retaking power in the state or federal governments, should be enforced.
There is little clear precedent on applying Section 3, which largely has been inoperative since Congress restored the rights of most ex-Confederates in 1872. Without guidance on the framers’ understanding or a line of authority interpreting the provision, both conservative and liberal justices looked to the implications of permitting each state to set its own definition of insurrection and ballot disqualification for presidential candidates.
Justice Brett Kavanaugh said that democratic principles weighed against removing presidential candidates without clear authority from Congress. “What about the idea that we should think about democracy, think about the right of the people to elect candidates of their choice?” he told Murray. “Because your position has the effect of disenfranchising voters to a significant degree.”
“The reason we’re here is that President Trump tried to disenfranchise 80 million Americans who voted against him,” Murray said. “And the Constitution doesn’t require that he be given another chance.”
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