Lawyers debating whether Donald Trump should be on the ballot this year are now quarreling over who should argue the case before the Supreme Court next week.
The attorneys for Colorado’s secretary of state have asked for time during oral arguments on Feb. 8 to make their case for why Mr. Trump should be excluded. Under state law, they would be the ones to remove his name from ballots.
Attorneys for Norma Anderson and other state voters who brought the initial lawsuit asked the justices not to let the secretary of state’s team argue. They said they have the case covered and see no need for the state to cut into their allotted time.
Lawyer Seth Barrett Tillman, who is not associated with Mr. Trump, the Colorado voters or the Colorado secretary of state, has asked the justices for time to argue.
Mr. Tillman, a professor at Maynooth University School of Law and Criminology in Ireland, said he could help the court determine whether the president is an “officer of the United States.” Mr. Trump’s opponents say that key term in the Constitution’s 14th Amendment makes him ineligible for election.
The state voters said the court doesn’t need to hear Mr. Tillman because he “merely duplicates arguments made by Trump.”
“This is not one of those rare cases where an amicus curiae brings an important perspective all parties have overlooked,” the state voters said through their attorney, Jason Murray.
The case before the justices stems from the 14th Amendment’s insurrection clause, which bars certain officials who “engaged in insurrection or rebellion” against the government from holding office. The Colorado Supreme Court has ruled that the provision applies to Mr. Trump and prohibits him under state law from the primary election ballot next month.
The case has drawn intense interest from politicians and lawyers. More than 75 friend-of-the-court briefs were filed by Wednesday’s deadline.
Those who argue before the justices are usually in the best positions to present the legal questions the high court is trying to settle.
Mr. Trump’s team of attorneys will have time because they are appealing the Colorado Supreme Court ruling. Mr. Murray will have time as the attorney for Ms. Anderson and the other voters.
Colorado Solicitor General Shannon Wells Stevenson, representing Secretary of State Jena Griswold, said her interests differ from those of the voters, though both are trying to block Mr. Trump from the ballot. She said Ms. Griswold needs to defend the operations of the state’s law on ballot eligibility.
Mr. Murray said the state played a passive role in the lower courts.
“Nothing in the secretary’s motion for argument time supports her taking a prominent role in this case now with more time than usually received by the federal government at argument, having largely chosen to stay silent below,” he said.
Given the time-sensitive nature of the dispute, the high court could rule soon after oral arguments are presented.
A quick decision is not unprecedented. The high court decided Bush v. Gore in 2000 in just days and issued its opinion the day after hearing oral arguments.
The insurrection clause reads: “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The provision was written into the 14th Amendment with Civil War rebels in mind, but the Colorado Supreme Court ruled 4-3 in December that it also applied to Mr. Trump.
The majority held that Mr. Trump was an officer of the U.S. subject to the provision, that he did engage in an insurrection with his behavior surrounding the 2020 election, that his behavior was not protected by the First Amendment, that states can ban candidates from their ballots without an act of Congress, and that the state doesn’t have to wait for a criminal conviction to do so.
To prevail, Mr. Trump has to win on just one of those issues.
The state court justices acknowledged that they were breaking legal ground with the first significant ruling against Mr. Trump on the ballot question.
Maine Secretary of State Shenna Bellows used the same legal justification to try to remove the former president from ballots. A state court put the move on hold, and Maine’s top court said it would wait for the Supreme Court’s decision in the Colorado case before hearing Ms. Bellows’ appeal.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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