Supreme Court justices expressed deep skepticism Thursday of the power of individual states to kick former President Donald Trump off their ballots, casting doubt on the Colorado Supreme Court‘s controversial 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 GOP and Democratic-led states, while other justices expressed concern about the potential chaos of every state going its own way, turning ballots into Swiss cheese with different names appearing in different states.
The justices acknowledged the “very high stakes” of the case and said that’s 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 demanded.
“It just doesn’t seem like a state call,” agreed Justice Amy Coney Barrett.
Chief Justice John G. Roberts Jr. wondered about the chaos that would result if the high court did accept the 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 lawyer for the Colorado voters suing to block Mr. Trump from the ballot, struggled for answers but kept coming back to the former president’s behavior on Jan. 6, 2021. He said it was so outrageous 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 he be given another chance.”
He said whatever worries there were about balkanized elections, that’s what the Constitution envisioned.
“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 that type of sorting of candidates goes on all the time. She pointed out that a number of states currently 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 Electoral Clause assumes will happen,” she said.
The Colorado Supreme Court in December ruled Mr. Trump ineligible to appear on the state’s ballot for next month’s Republican presidential primary. The Supreme Court put that decision on hold while it 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.”
Those 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 are able to 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 that might cleanly solve the case.
Justice Ketanji Brown Jackson said the language of Section 3 of the 14th Amendment seemed very intentional in leaving out the president from the list of officers covered.
“I didn’t see any evidence that the presidency was top of mind for the framers,” she said, saying Section 3 seemed meant to keep Confederates from returning to power in the states.
Justice Brett M. Kavanaugh repeatedly went back to a decision made by then-Chief Justice Salmon Chase just after the 14th Amendment was ratified. It wasn’t a Supreme Court case but while riding circuit Chase ruled that Congress must pass 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 with Justice Sonia Sotomayor, who seemed troubled by the centrality of Mr. Trump in all of the arguments. At one point she wondered where his lawyer’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 lawyer, Jonathan Mitchell, said states could, in fact, disqualify someone from their ballot for that reason.
The case is Trump v. Anderson. Norma Anderson is one of the Colorado voters seeking to block him from the ballot.
A ruling from the high court in the dispute could come soon after oral arguments, given the time-sensitive nature of the dispute and looming primaries. Colorado’s primary is slated for March 5.
A quick decision is not unprecedented. In 2000, the high court issued a ruling in Bush v. Gore the day after oral arguments were held.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.