When the Colorado Supreme Court found former President Donald Trump ineligible for the state primary ballot under Section 3 of the 14th Amendment, the ruling had a large ripple effect even as the court stayed its own removal order in the event of an appeal.
Maine soon disqualified President Trump as well, and voters in other states put forth efforts to remove President Joe Biden under similar reasoning.
Trump: ‘A Very Beautiful Process’
Former President Donald Trump has weighed in on the presidential ballot case following a hearing at a press conference outside his Mar-a-Lago residence in Palm Beach, Florida.“It’s a very beautiful process,” he said, referring to the Supreme Court hearing. “I hope that democracy in this country will continue because, right now, we have a very, very tough situation with all of the radical left ideas, with the weaponization of politics. They’ve weaponized it like it’s never been weaponized before. It’s totally illegal, but they do it anyway.”
During the hearing, an argument raised by Jason Murray, the attorney for President Trump’s challengers, was that his public statements on Jan. 6, 2021, contributed to what they call an insurrection.
President Trump, however, charged that efforts to bar him from the ballot are just “more election interference by the Democrats,” and that if the Jan. 6 Capitol breach was an insurrection, it was the fault of then-House Speaker Nancy Pelosi (D-Calif.), not him.
Pointing to the tweets he posted shortly after violence broke out at the pre-approved “Stop the Steal” protest that day, he said, “If you take a look at those five or six tweets, you will see very beautiful, very heartwarming statements. ‘Go home,’ ‘the police are doing their job,’ … beautiful statements.”
He also cited his speech at the Ellipse near the White House prior to the protest, during which he urged protesters to “peacefully and patriotically” make their voices heard.
“[Mr. Murray] said I said bad statements, but it was the exact opposite. So, I think you should take a look at the statements that I made before and after and you’ll see a whole different dialogue.”
Alito Asks About Possible Fallout of a Colorado Ban
Supreme Court Justice Samuel Alito asked Colorado Solicitor General Shannon Stevenson, who is representing the state’s Attorney General Jena Griswold, about the possibility that if Colorado banned former President Donald Trump from its ballot, then other states would “retaliate” and bar other candidates.Ms. Stevenson replied, “I think we have to have faith in our system that people will follow their election policies and processes appropriately, that they will take realistic views of what insurrection is under the 14th amendment.”
“I don’t think that this Court should should take those threats too seriously,” she added.
Justice Alito followed up, asking, “You don’t think that’s a serious threat?”
“I think we have to proceed on the assumption that it’s not a serious threat,” Ms. Stevenson responded. “I think we have institutions in place to handle those types of allegations.”
Justice Alito asked, “What are those institutions?”
Colorado Solicitor General Makes Arguments
Ms. Stevenson started her 10 minutes of allocated argument, arguing that the state has the power to strip candidates of eligibility under the 14th Amendment, adding that “nothing in the Constitution strips the states of their power to direct presidential elections in this way."Jackson Asks Why Section 3 Applies to Presidents
Justice Ketanji Brown Jackson asked attorney Jason Murray the same question she asked attorney Jonathan Mitchell, whether Section 3 was meant to apply to presidents at all.Mr. Murray said the framers were concerned with charismatic rebels rising through the ranks from the state level, and potentially becoming president.
“Why didn’t they list ‘President?’” she asked. She said she was worried it wasn’t intended to cover vice presidents and presidents, and didn’t that “at least suggest ambiguity?”
“If there is an ambiguity, ... why would we construe it against democracy?” she asked.
Mr. Murray argued there was no ambiguity and “any office” is clear in applying to the presidency.
She asked whether a ruling against him would settle the issue for the nation.
Mr. Murray said if they ruled against the Colorado voters on procedural grounds, the issue would only come back “with a vengeance” later in the election cycle.
Other Insurrection Challenges ‘Daunting’
Chief Justice John Roberts said affirming the Colorado disqualification could lead to other states using this rationale to disqualify other candidates. The election would come down to “a handful of states” deciding these challenges and create a “daunting” situation.Attorney Jason Murray dismissed the other challenges as “frivolous,” but Chief Justice Roberts said that those petitioners may not think so.
“What do we do? Do we wait until the time of counting the ballots and determine which states are valid and which aren’t?” he asked, pressing Mr. Murray to address the potential outcome.
Mr. Murray found it unlikely other challenges would be brought or heard, describing Jan. 6 as an “extraordinary” effort.
“You’re avoiding the question,” Chief Justice Roberts said. “You’re saying we'll have to decide this is an insurrection ... that isn’t.”
Mr. Murray maintained it was unlikely that other challenges would gain traction, and that Section 3 was unused for 150 years because nothing as “extraordinary” as Jan. 6 had happened in 150 years.
Justice Brett Kavanaugh proposed that perhaps the issue remained “dormant” because Griffin’s case was broadly accepted and it was understood that Congress had to act.
Justice Samuel Alito said he could not conclude that just because we haven’t seen anything like it in 150 years, we won’t soon after. He pointed out that there were no presidential impeachments for decades, and then recently “in short order we’ve had three.”
“But the court can write how rare insurrection is,” Mr. Murray argued, urging them to define it as what happened on Jan. 6 and as an effort to prevent the peaceful transfer of power.
Justice Alito tried again to invite Mr. Murray to engage with what would happen after a ruling in his favor.
Suppose the outcome for the next president comes down to a single state, and Candidate A receives the majority of votes in that state, but the legislature doesn’t like him and believes him to be an insurrectionist, and passes legislation ordering electors to cast ballots for Candidate B, he proposed.
Mr. Murray said states would not have that authority after an election.
“Then three days after [the election], based on polls, the polls don’t look so good,” Justice Alito said.
Mr. Murray said he believed they could then block Candidate A. He added that he believed it unlikely, but seemed unconcerned that such a ruling would make it a legal possibility.
Justice Ketanji Brown Jackson was concerned about uniformity in ballots across the nation, and Mr. Murray said the court could then address those issues.
“I understand that we could resolve it for uniformity,” she said, asking why the framers would intentionally design a situation where interim chaos would ensue before the issue made its way to the Supreme Court, if at all.
“What they were most concerned with is that insurrectionists didn’t hold office,” Mr. Murray answered, adding it was “weird to say states can’t enforce” that provision while allowing Congress to “rip the heart out of Section 3” by simple majority in the case of blocked legislation.
Justice Alito asked whether a president who provides or releases funds to a country that has proclaimed the United States to be its biggest enemy would be giving “aid and comfort to the enemy” as per Section 3 and therefore be kept off the ballot.
Some voters have argued that President Joe Biden is similarly disqualified under Section 3 of the 14th Amendment for releasing $6 billion in frozen funds to Iran.
Mr. Murray said no, as that was language used in the Treason clause, and that phrase “applies in the context of a declared war.”
Justice Alito also asked Mr. Murray what the court was to do when different states were producing different records of fact and used different standards in similar cases, coming to different decisions. Mr. Murray said the court could pick and choose what cases to address.
Justice Elena Kagan said states are limited in who they can take off a ballot because it affects everybody else’s rights, and it has impacts beyond its own borders.
“It’s a question of broader principle: who has power over certain things,” she said. “What’s a state doing deciding who other citizens get to vote for president?”
Is Colorado Adding a New Qualification?
Because Article 2 makes no mention of insurrection or the application of Section 3, attorneys for President Trump have argued that to use Section 3 as a qualification for candidacy the same as age or citizenship would be to add a new qualification not outlined in the Constitution. The U.S. Term Limits v. Thorton case found this unconstitutional.Justice Neil Gorsuch asked Mr. Murray if he agreed that states’ authority over elections has to come from constitutional authority, and he did.
“We’re talking about Section 3, so that’s where we have to come from,” Justice Gorsuch said.
Mr. Murray said states could take authority from Article 2 but apply it to Section 3.
Justice Gorsuch said Section 3’s provisions regarding “holding office” are different from the qualifications clause in Article 2. It is also a disability that can be removed, unique from qualifications like age and citizenship that cannot be removed.
Mr. Murray argued that right now, and since Jan. 6, President Trump was disqualified, and a potential future pardon did not “negate” a disability that “exists today.”
Justices Say Affirming Colorado Would Give State Outsized Role
Several of the justices invited attorney Jason Murray, representing the challengers, to walk through the legal implications of a ruling in his favor. They predicted chaos and voter disenfranchisement, and seemed to be frustrated with Mr. Murray’s repeated insistence that the high court could deal with those legal issues as they arise.“Why should a single state get to decide who gets to be the President of the United States?” asked Justice Elena Kagan.
She added that the title itself “sounds awfully national to me,” suggesting that the means to which the president is elected ought to be national too.
To rule in his favor would mean that potentially one state secretary could alone make a determination, and “that means is quite extraordinary,” she said.
Mr. Murray answered that was not the case, “because this court is going to decide for the nation.”
Justice Kagan responded that the court could rule in his favor, but asked why it should.
Mr. Murray said that Article 2 outlined the method of electing a president, and it allows for states to set laws for their own procedures.
Justice Amy Barrett said that if the court affirmed the disqualification ruling, it is possible that other states would dig their heels in and keep President Trump on the ballot, but they were essentially in a position where a high court ruling on Colorado’s situation would decide the eligibility of President Trump for the nation, implying that it wouldn’t be up to the other state processes at all.
“You say we have to use Colorado’s facts clear error,” she said. “Why should clear error review apply?”
“It just doesn’t seem like a state call,” she added.
Mr. Murray said that was the ordinary process, but the Supreme Court could do an independent review of Colorado’s facts and record. He argued that the facts—President Trump’s speech—was not disputed in the lower courts to begin with.
Justice Barrett asked if he meant they should just watch the speech while ignoring lower court opinion, which would be a highly unusual request.
Justices Ask Which Part of Constitution Gives States Power to Disqualify National Candidate
Justice Neil Gorsuch said that the “whole point” of the 14th Amendment was to abridge states’ rights, and Section 5 further augments federal powers.“Wouldn’t that be the last place to look for state’s powers?” he asked.
Attorney Jason Clifford Murray argued that Article 2 gave states authority over elections and bound them to enforce the qualifications that apply to national candidates.
Several justices expressed skepticism with this argument. Justice Gorsuch pointed out that Section 3 did not make mention of state authority, and Article 2 made no mention of powers needed to enact Section 3 of the 14th Amendment.
Justice Brett Kavanaugh echoed the concern, and said that when reading Section 3, the “term insurrection jumps out.”
“What does that mean? How do you define it? Who decides? And with what processes?” Justice Kavanaugh asked. He said if they were to rely on Griffin’s case, a 1869 district court opinion that weighed the application of Section 3 at length, one would have to look at Section 5 of the 14th Amendment, which says “Congress has the primary role here.”
Respondents Argue States Have Authority
Jason Clifford Murray delivered a short statement asking the justices to reject the claim that the Colorado Supreme Court erred.Justice Clarence Thomas asked Mr. Murray for examples of states using Section 3 to remove national candidates. He said there were many examples of states using it to bar insurrectionists from state office, but not in a national election.
Justice Thomas was skeptical that Section 3 was meant to “authorize the South to disqualify national candidates,” which they could have under Mr. Murray’s interpretation.
‘Not Insurrection’
Justice Ketanji Brown Jackson asked if a ruling that states could not enforce Section 3 would end the litigation, or merely have the cases only continue in federal court. Then she said the high court would have say that Congress has to enact legislation for state or federal action to address both jurisdictions.She asked Mr. Mitchell whether Jan. 6 was an insurrection.
Mr. Mitchell said they have never conceded the insurrection point, and President Trump never did anything that could be constructed as committing an insurrection.
“There needs to be an organized, concerted effort to overthrow the government through violence,” he said.
Justice Jackson asked if he meant that a “chaotic” effort would not count.
Jackson Asks About 14th Amendment History
Justice Ketanji Brown Jackson revisited the “president” issue, telling Mr. Mitchell she did not see any evidence that the framers of the text intended to include that role at all.“They were dealing with a different issue,” she said. Their pressing concern was what was going on in lower levels, the states, and preventing an “infiltration” of the Confederacy at the state level that could years later result in a takeover.
She said she was surprised he would give up this defense given the historical context.
Mr. Mitchell argued that the framers had shown some concern, with a previous version of the text including presidents and vice presidents, and their references to Confederacy president Jefferson Davis, but he maintained that he found the “officer” argument much stronger than the “president” argument.
Not Using Due Process Argument
Justice Amy Barrett presented Mr. Mitchell with the hypothetical that Congress did enact a provision that allowed action against a former president.“Wouldn’t that be in some tension with impeachment?” she asked.
Mr. Mitchell answered there was no conflict regarding Congress’s powers in this case because there are several avenues to remove federal officers besides impeachment, such as defunding a position and a case that abolished positions for federal judges.
Justice Barrett asked why Mr. Mitchell had not advanced any due process arguments, such as procedures his client should have been entitled to or his constitutional right to ballot access.
Mr. Mitchell said that winning on due process would only restart such challenges.
It would, for example, leave the door open for the Colorado Supreme Court to ask the lower court to enact certain processes and later proceed with the disqualification.
Presidential Immunity Referenced
In the 1869, just years after the Civil War, Chief Justice Salmon Chase wrote a district court opinion that found that Section 3 is not self-executing. Mr. Mitchell argued this remains the authority on how Section 3 is applied.“If we agree with you there, that’s the end of the case?” asked Justice Brett Kavanaugh.
“Unless Congress enacts new legislation,” Mr. Mitchell answered.
Justice Kavanaugh added that a candidate could also be criminally convicted for insurrection, and that would not require Congress to act.
“Yes but our client contends that he has presidential immunity,” Mr. Mitchell said, adding that President Trump would argue, and he has done in other venues, that he cannot be prosecuted for his actions on Jan. 6.
President Trump is currently being prosecuted in a federal criminal case for his actions on Jan. 6, but he was not charged with committing or inciting insurrection. He was charged with four counts of obstruction and conspiracy, and pleaded not guilty to all four.
Sotomayer Says ‘Officer’ Argument Only Favors Trump
Supreme Court Justice Sonia Sotomayer said the “officer” argument offered by team Trump seemed “gerrymandered” to only benefit President Trump.If the Supreme Court accepts that only those who have taken an oath of office that wasn’t the oath the president took, Section 3 would apply to all presidents besides George Washington and President Trump. President Joe Biden had served as a senator, for example, and every other president had been at a high level of government before taking the office of the president.
Attorney Jonathan F. Mitchell, representing President Trump, said that “it does seem off that President Trump would ‘fall through the cracks,’ so to say,” but that he couldn’t answer as to why the framers would intend the text to work this way because it had been edited many times as the framers compromised on different points before it passed both Houses.
Jackson Asks If the Ban Applies to Presidents
Justice Kentanji Brown Jackson—a liberal justice—has asked if the 14th Amendment applies to the president.She noted that the wording of the provision doesn’t include the word “President” in the list of people barred, which specifically includes other offices such as “Senator of Representative in Congress.”
“They were listing people that were barred and ‘president’ is not there,” Justice Jackson said. “I guess that just makes me worry that maybe they weren’t focused on the president.”
Justice Jackson noted that in her reading of the historical context, the framers of the amendment were more concerned with insurrectionists rising through the ranks and the South rising up again than they were with an insurrectionist running for president.
She pressed Mr. Mitchell why he had placed so much emphasis on arguing that the president is not an “office of the United States,” and not the fact that “president” is not listed. She was skeptical that the framers intended to “smuggle” in the office of the president with a catch-all phrase at the end.
This was the argument a Colorado district court judge affirmed in ordering the state secretary to include President Trump on the ballot, even after finding Jan. 6, 2021, constituted an insurrection. That order was later overturned by the Colorado Supreme Court.
Mr. Mitchell responded that they are arguing both, but believe the “officer” argument is much stronger and supported in several places in the Constitution, where officers refer to appointed officials rather than elected officials. Members of Congress are described as holding “seats,” not ‘“offices.”
Gorsuch Asks Who ‘Insurrectionist Ban’ Applies To
Justice Neil Gorsuch asked the plaintiffs if the “insurrectionist ban” applies to those who are running for office or holding office.Section 3 of the 14th Amendment states that no person “shall ... hold any office ... under the United States” if they have previously taken an oath to the Constitution and had engaged in insurrection.
Justices Ask Whether States Can Apply Section 3 Independently
Justice Clarence Thomas asked Mr. Mitchell to elaborate on whether Section 3 was self-executing, and Mr. Mitchell answered that the application of Section 3 was entirely up to Congress.No secretary of state is allowed to act based on a prediction of whether Congress will remove a disability via a two-thirds vote, Mr. Mitchell added.
Justice Sotomayor pointed out that there are many cases of states using Section 3 to remove insurrectionists from state office. She faulted Mr. Mitchell for relying on the 1869 Griffin’s case, which is a district court decision that is not binding, pointing out that Chief Justice Salmon Chase, who wrote that opinion, had also previously indicated Section 3 was self-executing and disqualified Confederacy president Jefferson Davis without legislation from Congress.
Justice Amy Coney Barrett told Mr. Mitchell that if his argument that this removal mechanism adds a new “qualification” for candidacy, then Congress could not enact legislation to allow Colorado to do what it has done anyway, because then Congress would be adding a new qualification.
Defense Delivers Opening Statement
Mr. Mitchell, representing former President Donald Trump, told the justices that Section 3 did not apply to presidents, because the “officer of the United States” mentioned in the Constitution applies to appointed, not elected officials.80 Minutes to Argue
The Supreme Court has granted President Trump’s side 40 minutes to argue, the respondents—six Colorado voters represented by activist group Citizens for Ethics & Responsibility in Washington—30 minutes to argue, and Colorado Secretary of State Jena Griswold 10 minutes to argue.Background
The 14th Amendment was ratified in the wake of the Civil War, granting citizenship and equal rights to all persons born or naturalized in the United States. Section 3 was added to prevent deserters who joined the Confederacy from returning to the offices they abandoned, unless a two-thirds vote from Congress removed the disqualification.The novel legal theory that President Trump engaged in “insurrection,” as written in Section 3 of the 14th Amendment, began circulating a day after Jan. 6, 2021, with advocates urging state election officials to bar him from any future ballot. The House of Representatives voted to impeach President Trump a second time weeks later based on “incitement to insurrection.” However, he was acquitted in the Senate.
Last summer, the effort was revived when legal challenges to President Trump’s candidacy were filed in dozens of jurisdictions across the nation.
On Dec. 19, Colorado became the first state to officially declare President Trump ineligible for the ballot, in an unusual state Supreme Court decision that stayed its own order in anticipation of an appeal to the U.S. Supreme Court. Soon after, the Maine secretary of state followed in issuing a decision to remove President Trump from the ballot, while staying the removal in the event of an appeal.
As of early January, attorneys for President Trump noted more than 60 cases in 30-some states that they were aware of. On Jan. 5, the Supreme Court accepted President Trump’s petition to review the Colorado decision, and several other courts have dismissed similar cases to defer to the high court’s impending decision.
Attorneys for President Trump argue that not only did he not engage in or incite an insurrection, but Section 3 does not apply to him at all.
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