It’s the justices’ most consequential election case since Bush v. Gore in 2000.
HUFFPOST
The Supreme Court on Thursday sounded broadly skeptical of efforts to kick former President Donald Trump off the 2024 ballot.
In more than two hours of arguments, both conservative and liberal justices raised questions of whether Trump can be disqualified from being president again because of his efforts to undo his loss in the 2020 election, ending with the Jan. 6, 2021, attack on the U.S. Capitol.
The primary concern was whether Congress must act before states can invoke a constitutional provision that was adopted after the Civil War to prevent former officeholders who “engaged in insurrection” from holding office again. There also were questions about whether the president is covered by the provision.
Without such congressional legislation, Justice Elena Kagan was among several justices who wanted to know “why a single state should decide who gets to be president of the United States.”
Eight of the nine justices suggested that they were open to at least some of the arguments made by Jonathan Mitchell, Trump’s lawyer at the Supreme Court. Trump could win his case if the court finds just one of those arguments persuasive.
Only Justice Sonia Sotomayor sounded like she might vote to uphold the Colorado Supreme Court ruling that found that Trump “engaged in insurrection” and is ineligible to be president. The state court ruled Trump should not be on the ballot for the state’s Republican primary on March 5.
In another sign of trouble for the Colorado voters who sued to remove Trump from the ballot, the justices spent almost no time talking about whether Trump actually “engaged in insurrection” following the 2020 election.
Lawyer Jason Murray, representing the voters, pressed the point that Trump incited the Capitol attack to prevent the peaceful handover of power “for the first time in history.”
Mitchell argued that the Capitol riot was not an insurrection and, even if it was, Trump did not participate.
The case marks the first time the justices are considering Section 3 of the 14th amendment.
It sets up precisely the kind of case that the court likes to avoid, one in which it is the final arbiter of a political dispute.
Chief Justice John Roberts worried that a ruling against Trump would prompt efforts to disqualify other candidates, “and surely some of those will succeed.”
Trump’s lawyers argue that the amendment can’t be used to keep Trump off the ballot for several reasons.
For one thing, they contend the Jan. 6 riot wasn’t an insurrection, and even if it was, Trump did not participate. The wording of the amendment also excludes the presidency and candidates running for president, they say. Even if they’re wrong about all of that, they argue that Congress must pass legislation to reinvigorate Section 3.
The lawyers for Republican and independent voters who sued to remove Trump’s name from the Colorado ballot counter that there is ample evidence that the events of Jan. 6 constituted an insurrection and that Trump incited it. They say it would be absurd to apply Section 3 to everything but the presidency or that Trump is somehow exempt. And the provision needs no enabling legislation, they argue.
A definitive ruling for Trump would largely end efforts in Colorado, Maine and elsewhere to prevent his name from appearing on the ballot.
