Supreme Skepticism: Will Trump Remain on the State Ballot?

The Supreme Court has shown noticeable skepticism towards the disqualification of Trump from appearing on the state ballot. Justices, regardless of their ideological leanings, expressed concerns about the implications for electoral integrity and democratic principles. The questioning shifted towards preserving ballot access, signaling potential challenges for those advocating for Trump’s removal. This shift in dialogue underscores the importance of solid legal grounding and the broader consequences of electoral exclusions.

The Supreme Court has expressed skepticism about Colorado’s power to remove former President Donald Trump from the Republican primary ballot due to his actions in overturning the 2020 election results. A majority of the justices appeared during the two-hour argument to think that states do not have a role in deciding whether a presidential candidate can be barred from running under a provision of the Constitution’s 14th Amendment that bars people who “engaged in insurrection” from holding office. Justices raised concerns about states reaching different conclusions on whether a candidate could run, and several indicated that only Congress could enforce the provision at issue.

The Supreme Court, which has a 6-3 conservative majority, is tackling several novel and consequential legal issues concerning Section 3 of the 14th Amendment, enacted in the wake of the Civil War. Under that provision, aimed at preventing former Confederates from returning to power in the U.S. government, anyone who had previously served as an “officer of the United States” and was then involved in an insurrection would be barred from holding federal office.

Chief Justice John Roberts said that the “whole point” of the 14th Amendment was to restrict state power after the Civil War and questioned why it would give states the ability to kick a presidential candidate off the ballot. Conservative Justice Brett Kavanaugh said it was clear from the entirety of the 14th Amendment that “Congress has the primary role here,” citing a Civil War-era ruling that marked an early interpretation of the provision.

Justices also wondered about the practical implications of allowing the provision to be interpreted on a state-by-state basis. Justice Elena Kagan, one of the three liberal justices, told Jason Murray, the lawyer representing Colorado voters, “I think that you have to confront the question that you have to confront: why a single state should decide who gets to be president of the United States.” Justice Amy Coney Barrett, a conservative, echoed this sentiment, saying “it just doesn’t seem like a state call.”

The Colorado Supreme Court ruled in December that Trump could be thrown off the Republican primary ballot but put its decision on hold while he appealed. If Trump loses, other states could follow suit, placing hurdles in the way of his attempt to regain the presidency this fall. State officials in conservative-controlled governments have also warned they could seek to remove President Joe Biden from the ballot in response.

Does the 14th Amendment apply to Trump?

The Insurrection Clause, a provision in the US Constitution that prohibits insurrection after taking an oath to support the Constitution, has been used only eight times since the 1860s. It has never been used against a presidential candidate. The lawsuit is being brought by Citizens for Responsibility and Ethics in Washington, which supports the lawsuit. Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, believes that the reinstatement of dormant language in the Constitution is necessary, as no other American president has refused to peacefully hand over power after losing an election.

The language in the clause states that anyone who engages in insurrection after taking an oath to support the Constitution is barred from holding public office unless two-thirds of Congress votes to grant that person amnesty. Extending this logic to a former president would have profound consequences, as it could lead to attacks on President Biden, Vice President Harris, senators, representatives, and others trying to prevent them from being on the ballot.

Lawyers for the former president argue that Congress needs to pass a law that answers questions about how to enforce this part of the 14th Amendment. They also claim that there is no guidance from Congress on what the proper standards are, what the burden of proof is, and what insurrection means.

When will the court be able to rule?

The Supreme Court, including justices appointed by Donald Trump, has previously voted against his interests, including allowing the House Select Committee to access documents related to Trump’s conduct. The question remains whether Trump will follow the rule of law or do something different that endangers democracy. The Supreme Court has not offered a timetable for its decision, but some legal experts believe it could rule before the Super Tuesday primaries in early March.

The question about Trump’s disqualification in Colorado is playing out in dozens of other states, with litigation pending in 11 other states. New challenges could be brought to his eligibility for the general election. Chief Justice John Roberts is working to avoid a sharp conservative and liberal split, with some suggesting that the key part of the 14th Amendment requires Congress to pass a new law before it can be used.

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