Supreme Court justices expressed deep skepticism Thursday about the power of individual states to keep former President Donald Trump off their ballots, casting doubt on the Colorado Supreme Court’s decision that he be disqualified from running in the state’s primary election for taking part in an “insurrection” against the government.
Some worried about a tit-for-tat battle among Republican- and Democratic-led states. Other justices expressed concern about the potential chaos if every state goes its own way, turning ballots into Swiss cheese.
The justices acknowledged the “very high stakes” and said it was all the more reason why Colorado’s decision is tough to stomach.
“Why should a single state have the ability to make this determination, not only for their own citizens but for the rest of the nation?” Justice Elena Kagan asked.
“It just doesn’t seem like a state call,” said Justice Amy Coney Barrett.
Chief Justice John G. Roberts Jr. wondered about chaos if the high court accepted Trump opponents’ view, unleashing a ballot arms race.
“I would expect that a goodly number of states will say whoever the Democratic candidate is, you’re off the ballot, and others for the Republican candidate, you’re off the ballot,” he said. “It’ll come down to just a handful of states that will decide the presidential election. That’s a pretty daunting circumstance.”
Jason Murray, the attorney for the Colorado voters suing to block Mr. Trump from the ballot, struggled for answers but kept returning to the former president’s behavior on Jan. 6, 2021. He said it was so outrageous that it should be self-evident and covered under the Constitution’s prohibition on “insurrectionists” holding office.
“Ultimately, what we have here is an insurrection that was incited in plain sight for all to see,” he said. “The reason we are here is that President Trump tried to disenfranchise 80 million Americans who voted against him. The Constitution doesn’t require that he be given another chance.”
The justices generally avoided the issue of whether Mr. Trump engaged in an insurrection, other than to wonder about the correct forum for making that ruling.
Justice Brett M. Kavanaugh noted that a federal statute to prosecute such a charge is on the books.
“President Trump hasn’t been charged with that,” he said.
Several justices indicated that their biggest fear was having each state come to its own conclusion.
Mr. Murray said the Constitution’s framers envisioned balkanized elections.
“Different states can have different procedures. Some states may allow insurrectionists to be on the ballot,” he said.
Shannon Stevenson, Colorado’s solicitor general, said states always sort candidates. She pointed out that many states have a non-natural-born citizen on their ballots despite that being a clear disqualification.
“There may be some messiness of federalism here because that’s what the electors clause assumes will happen,” she said. “We have to have faith in our system.”
The Colorado Supreme Court ruled in December that Mr. Trump is ineligible to appear on the state’s ballot for the Republican presidential primary next month. The court put that decision on hold while the U.S. Supreme Court hears the case.
Those hoping to remove Mr. Trump from state ballots point to the Constitution’s 14th Amendment, which reads in part: “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.”
Trump opponents need to thread a tricky needle to win. They must prove that Mr. Trump, because of his actions relating to Jan. 6, engaged in an insurrection, that he was covered by the 14th Amendment when he was in office and that it applies to the presidency for future elections, that states can enforce the prohibition, that they don’t have to wait for a criminal conviction to do so and, in Colorado’s current case, that they can control a party primary.
Several justices wrestled with ways to solve the case cleanly.
Justice Ketanji Brown Jackson said the language of Section 3 of the 14th Amendment seemed to intentionally leave the president off the list of officers covered.
“I didn’t see any evidence that the presidency was top of mind for the framers,” she said, noting that Section 3 seemed meant to keep Civil War Confederates from returning to power in the states.
“Why didn’t they put the word ‘president’ in the very enumerated list in Section 3?” she asked. “The thing that really is troubling to me is … they were listing people that were barred and ‘president’ is not there.”
Justice Kavanaugh repeatedly returned to a decision made by Chief Justice Salmon P. Chase just after the 14th Amendment was ratified. It wasn’t a Supreme Court case but an appeals court decision. Chase ruled that Congress must enact legislation to give states the power to invoke the insurrection clause against federal officeholders.
“Congress has the primary role here,” Justice Kavanaugh said.
Mr. Trump’s opponents fared best when Justice Sonia Sotomayor seemed troubled that Mr. Trump was at the center of all the arguments. At one point, she wondered where his attorney’s legal arguments were heading.
“Are you setting up so that if a president runs for a third term, a state cannot disqualify him from the ballot?” she said.
Mr. Trump has repeatedly joked about that idea, but his attorney, Jonathan Mitchell, said states could disqualify someone from their ballots for that reason.
Mr. Trump said he watched the proceedings and was pleased.
“I thought the presentation today was a very good one. I think it was well received,” Mr. Trump said of Mr. Mitchell.
He took issue with Mr. Murray’s contention that Jan. 6 was an insurrection.
“There were no guns,” said Mr. Trump, asserting his words on that day were calming, not inciteful.
“I said ‘peacefully and patriotically,’” the former president said. “He said I said bad statements. It was the exact opposite.”
The case has proved deeply divisive outside the court but a political bonanza for Mr. Trump. Most of his rivals for the presidential nomination leaped to his defense when the Colorado ruling was issued.
Ahead of the arguments, the former president asked supporters to send him money to help in the fight.
“This is the greatest legal challenge we’ve ever faced,” he said.
On the left, activists called for Justice Clarence Thomas to recuse himself from the case over his wife’s support for Mr. Trump’s objections to the 2020 election results.
He took part in Thursday’s arguments.
Like other justices, he suggested that the 14th Amendment was meant to be a check on the states — not to empower them to disqualify national officeholders.
“There were people who felt very strongly about retaliating against the South, the radical Republicans, but they did not think about authorizing the South to disqualify national candidates,” he said.
The case is Trump v. Anderson. Norma Anderson is one of the Colorado voters seeking to block the former president from the ballot.
Given the time-sensitive nature of the dispute and looming primaries, the high court could issue a ruling soon after oral arguments. Colorado’s primary is slated for March 5.
A quick decision is not unprecedented. In 2000, the high court ruled in Bush v. Gore the day after hearing oral arguments.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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