The Supreme Court Looks Ready To Put Donald Trump Back On The Ballot

The U.S. Supreme Court was nearly unanimous Thursday in its skepticism of the argument that the Constitution allows a state to remove a presidential candidate from its ballot after the Colorado Supreme Court decided to take former President Donald Trump s name off its ballot for engaging in insurrection.

Trumps ballot access came before the court in the case of Trump v. Anderson after nine voters in Colorado challenged his qualifications for office under Section 3 of the 14th Amendment, which forbids people who have previously taken an oath of office to uphold the Constitution and then engaged in insurrection from holding office in the future. The Colorado Supreme Court ruled on Dec. 19 that Trump was constitutionally ineligible due to his actions after the 2020 election and up to the Jan. 6, 2021, attack on the U.S. Capitol and ordered him removed from the ballot.

The Supreme Courts skepticism came from all sides, with the six conservative justices and three liberals raising different points against it. But ultimately the justices appeared to coalesce around an argument that Section 3 does not give individual states the power to remove candidates for federal office without Congress passing legislation to authorize it.

The whole point of the 14th Amendment was to restrict state power, Chief Justice John Roberts said, adding, Wouldnt that be the last place youd look for authorization for the states, including the Confederate states, to enforce the presidential election process? That seems to be a position at war with the whole thrust of the 14th Amendment and very ahistorical.

Jonathan Mitchell, the lawyer representing Trump, argued that the former president should be put back on the ballot because the office of the president was not specifically included in Section 3s list of which candidates could be disqualified; that the section required congressional authorization; and that Trump did not engage in insurrection on Jan. 6, 2021.

The court had never heard arguments on Section 3 before, and so the questions and potential answers were novel. The justices came to what appeared to be their preferred way to resolve the case as they riffed while questioning both Mitchell and Jason Murray, who argued on behalf of Citizens for Ethics and Responsibility in Washington, the nonprofit representing the Colorado voters who sought to remove Trump from the ballot. 

The discussion of whether Section 3 requires congressional legislation to be put into effect, rather than being self-executing, began around the issue of the 1869 Virginia circuit court decision in Griffins Case, written by Chief Justice Salmon Chase. As one of the extremely few Section 3 cases in existence, Griffins Case was central to Trumps arguments.

In that case, a Black criminal defendant, Caesar Griffin, argued that his conviction in a violent crime case should be thrown out because the presiding judge was a former Confederate and therefore was ineligible to hold office under Section 3 of the 14th Amendment. Chase ruled for the circuit court hearing the case that the judge would not be removed because Section 3 required congressional legislation in order to take effect.

Mitchell used the case to argue in support of Trump remaining on the ballot, saying the case and the fact that Congress used it to justify Section 3-related provisions of the Enforcement Act of 1870 , served as evidence that Congress first needed to provide a mechanism by which states could remove candidates from the ballot under Section 3 before acting.

If we agree with you on Griffins Case and what youve elaborated on there, thats the end of the case? Justice Brett Kavanaugh asked, to which Mitchell agreed.

Griffins Case, though, involved the disqualification of a state official by a state, whereas Trumps disqualification involves a federal candidate facing disqualification by a state. Following Kavanaughs questioning, Justice Samuel Alito homed in on the distinction between states disqualifying state officials and states disqualifying federal officials.

Is there any history of states using Section 3 as a way to bar federal office holders? Alito asked Mitchell.

Not that Im aware, Mitchell replied.

Perhaps state courts could disqualify state-level candidates, but why should they be able to disqualify federal candidates, especially candidates for the presidency? The other justices took this idea and ran with it.

To put it most baldly, the question that you have to confront is why a single state should get to decide who gets to be president of the United States? Justice Elena Kagan asked Murray, who was arguing in favor of keeping Trump off the ballot in Colorado. In other words, this question of whether this former president is disqualified for insurrection to be president again, Ill just say it, It sounds awfully national to me. So, whatever means there are to enforce it would suggest that they have to be federal national means?

Murray responded that that the Supreme Court was itself the ultimate and final national authority. But this raised more questions than it answered for the justices as they circled around their apparent way out of the case.

Justice Amy Coney Barrett asked Murray how the court should weigh the standards of evidence for each Section 3 case that reaches it. Different states have different standards, and different judges set different standards depending on the individual case. If the court is bound by the factual record gathered under state rules, then can the court really be the final authority?

What if this [decision] is made by the secretary of state without much process at all? How do we review those factual findings? Barrett asked, adding, It just doesnt seem like a state call.

Throughout arguments, Justice Sonia Sotomayor appeared to be the only justice not hostile to the argument in support of removing Trump from the ballot. But near the end of Murrays argument time, she asked him to address the argument seemingly ready to be adopted by the majority: whether states dont have the right to enforce or create a cause of action in this situation.

Justice Ketanji Brown Jackson closed Murrays argument time by asking him what would happen next if the court ruled that states cant disqualify federal candidates.

If we think that the states cant enforce this provision in the presidential context, what happens next in this case? Jackson asked. Is it done?

If this court concludes that Colorado did not have the authority to exclude President Trump from the presidential ballot on procedural grounds, I think this case would be done, Murray said. But ultimately, I think, it could come back with a vengeance.

Were Trump to win in November, Murray argued, it would be left to Congress to judge whether he was disqualified from holding office under Section 3 during the post-election period. Congress would have a strict deadline on making that determination: Jan. 6, 2025.