Justices on the United States Supreme Court were sceptical Thursday of the effort to remove Republican presidential front-runner Donald Trump from a state primary ballot because he allegedly engaged in an insurrection to retain power after losing the 2020 election to Joe Biden.
The historic issue stems from Colorado, when the state Supreme Court removed Trump from the GOP primary ballot. However, the Supreme Court’s decision might have far-reaching consequences for Trump’s political future.
The plaintiffs in the case argue that Trump’s activities following the 2020 presidential election inevitably disqualify him from office. Trump’s lawyers argue that the case against him is one of overreach.
Legal analysts argue that the court’s refusal to act quickly would “place the nation in great peril.”
However, during more than two hours of oral arguments on Thursday, the court’s justices appeared to be looking for a method to keep Trump on the ballot while leaving election decisions up to voters.
Facts of the case
Norma Anderson brought the complaint after watching attackers overrun the United States Capitol on television three years ago from her home in Colorado.
Anderson remembers thinking, “They’re trying to overthrow the government.”
Anderson, aged 91, is a Republican. She was the first woman to lead the Colorado House of Representatives, and then the state Senate. She stated that taking part in the case is her way of safeguarding democracy.
“You have to remember, as old as I am, I was born in the Great Depression,” she told me. “I lived through WWII. I remember Hitler. I recall my relative being with Eisenhower when they opened the death camps… I mean, I understand the need to safeguard democracy.”
Anderson and five other Colorado voters are relying on a provision of the 14th Amendment, ratified after the Civil War, to keep Confederates out of government.
“Those who drafted Section 3 of the 14th Amendment back in the 1860s were very clear that they understood this provision not just to cover former Confederates but that it would stand as a shield to protect our Constitution for all time going forward, and so this is not some dusty relic,” said Jason Murray, their lawyer, who faced sceptical questions from justices during Thursday’s oral arguments.
Does the 14th Amendment apply to Trump?
This provision has only been invoked to disqualify candidates eight times since the 1860s, the most recent being two years ago in the case of a New Mexico county commissioner who trespassed at the Capitol on January 6, 2021. It has never been used against a presidential contender.
“In an ideal world, it would have been great to have years to build cases in different states and parts of the country regarding defendants at various levels,” said Noah Bookbinder, president of Citizens for Responsibility and Ethics in Washington, which is supporting the action. “We didn’t have that luxury because this person who played such a central role in making that insurrection happen, Donald Trump, was suddenly trying to put himself in a position of power again.”
Murray believes there is a justification to resurrect dormant language in the Constitution in this case: “No other American president has refused to peacefully hand over the reins of power after losing an election,” he said.
The Court’s Options
The case puts the Supreme Court in the heart of a presidential race for the first time since 2000, when it halted the Florida recount and delivered George W. Bush the presidency.
This moment, the justices have several options:
The courts have three options: disqualify Trump (as Colorado’s top court ruled in December), make it a political question for lawmakers and voters to answer, or leave Trump on the ballot (as he and many Republicans in Congress request).
Not delivering a clear answer before the November election or certification in January may mislead or disenfranchise voters.
“[W]hen you have such divided opinions and such a volatile situation, it’s just better to have some certainty about this issue as soon as possible,” said Rick Hasen, a UCLA law and political science professor.
Hasen and two other election law experts signed a friend-of-the-court brief stating that a court decision not to decide might “place the nation in great peril.”
“We think it creates conditions for great political instability if the court leaves this issue open,” Hasen said in a statement.
When the court could rule?
Donald K. Sherman, CREW’s chief counsel, stated that the Supreme Court, including justices appointed by Trump, has previously voted against his interests, including a case in which the court granted the House Select Committee investigating the Jan. 6 siege access to documents relating to Trump’s conduct.
“We are fully prepared to accept the results of the court’s decision and we expect that state officials across the country are fully prepared to do that,” Sherman said in a statement. “The one big question that always remains is, is Donald Trump going to follow the rule of law or is he going to do something different that endangers our democracy?”
The Supreme Court has not provided a schedule for its decision, but some legal experts believe the justices will rule before the Super Tuesday primaries in early March.
The debate over Trump’s disqualification in Colorado is also playing out differently in dozens of other states. Maine’s secretary of state determined Donald Trump is ineligible to be on the primary ballot, but the judgement has been postponed awaiting Trump’s appeal. Litigation is also proceeding in eleven additional states.
Whereas challenges to Trump’s primary ballot appearance have already been dismissed, additional challenges to his general election eligibility may arise.
Hasen, of UCLA, believes Chief Justice John Roberts will work hard to prevent a clear conservative-liberal divide.