Supreme Court Likely to Retain Trump on Ballot Despite Insurrection Allegations

The Supreme Court suggests it will retain Donald Trump on the ballot. The justices' ruling on Section 3 of the 14th Amendment may even be unanimous. When the Supreme Court decided Bush v Gore a generation ago, five justices effectively awarded the presidency to George W. Bush over Al Gore.

Supreme Court Likely to Retain Trump on Ballot Despite Insurrection Allegations

The potential implications of Trump v Anderson, which the court heard on February 8th, could be similarly significant. However, this time, the justices are cautious about making a significant impact on a presidential election and about splitting their votes along ideological lines. By the end of the oral arguments, it appeared there was a consensus: despite his involvement in the events of January 6th, 2021, Colorado will most likely not be permitted to remove Mr. Trump from its ballot, nor will the other 49 states in this year's election.

The historic hearing marked the first time the Supreme Court had considered the meaning and scope of Section 3 of the 14th Amendment, a provision that prohibits officials from holding future public office if, after swearing an oath to support the constitution, they engage in "insurrection or rebellion." When rioters stormed the Capitol in an attempt to overturn the 2020 election, scholars referenced this relic of the Reconstruction era—a mechanism initially designed to prevent former Confederate leaders from wielding power. Voters and advocacy groups in at least 35 states argued that Donald Trump is a modern-day insurrectionist who should be disqualified from seeking a second presidential term.

Legal efforts stalled in most states, but on December 19th, the Colorado Supreme Court invoked Section 3 in ruling Mr. Trump ineligible to appear on the ballot for the state's Republican primary on March 5th. Arguing in defense of this decision at the federal Supreme Court, Jason Murray (representing a group of voters including Norma Anderson, a 91-year-old Republican) described January 6th as a "violent assault" incited by a sitting president of the United States.

This was one of the few moments during two hours of debate that recalled the chaos that unfolded across the street from the Supreme Court three years ago. The hearing was dominated by dry parsing of legal technicalities and concerns about the consequences if the Colorado court's decision were upheld.

In his opening statement, Jonathan Mitchell, Mr. Trump's lawyer, did not mention January 6th. He did not dispute that the riot was an "insurrection" (though he later did so half-heartedly). At no point did he defend his client's actions. Instead, he argued that Section 3 does not apply to Mr. Trump because a "president is not 'an officer of the United States' as that term is used throughout the constitution." (He later explained that an officer is a "term of art" that applies "only to those who are appointed, not to those who are elected.") Mr. Mitchell also questioned a state's authority to remove a presidential candidate from the ballot based on Section 3. The second sentence of that provision allows Congress to lift the ban with a two-thirds vote. Therefore, by prematurely removing a candidate from the ballot, a state is "accelerating the deadline to meet a constitutionally imposed qualification" and disenfranchising "potentially tens of millions of Americans."

Justices from right to left expressed doubts about granting states the power to disqualify presidential candidates. Justice Brett Kavanaugh emphasized Griffin's case, an 1869 circuit-court ruling that stated Section 3 could not be applied unless Congress passed a law allowing the removal of insurrectionists. Justices Samuel Alito and Clarence Thomas noted that states have only used Section 3 to disqualify candidates for state, not federal, offices. Chief Justice John Roberts questioned the purpose of the 14th Amendment: isn't its "whole point," he asked Mr. Murray, "to restrict state power"? Empowering states to disqualify candidates at will seems to contradict that aim. If states cynically reject candidates from their ballots, elections could hinge on just a "handful of states." That, he cautioned, would have "a pretty daunting consequence."

It wasn't just the conservative majority of six justices who were uncomfortable with Colorado's decision to remove Mr. Trump from the ballot. Justice Ketanji Brown Jackson noted that "president" and "vice-president" are not among the offices Section 3 prohibits oath-breakers from holding. Justice Elena Kagan echoed Chief Justice Roberts's concerns about the chaos that would result from each of the 50 states independently deciding who qualifies for the ballot. "Why should a single state," she asked Mr. Murray (who had clerked for her a decade ago), "have the ability to make this determination not only for their own citizens but for the rest of the nation?"

Justice Sonia Sotomayor appears to be the only potential dissenting voice on a bench unwilling to endorse a new system of states making independent judgments about candidates' fitness under Section 3. With primary season underway, the court is likely eager to alleviate confusion. The answer could come unusually quickly for a court that typically takes months to issue a ruling: the justices are scheduled to convene in the courtroom next on February 16th.

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