WASHINGTON – The Supreme Court seems poised to reject attempts to kick former President Donald Trump off the 2024 ballot, with conservative and liberal justices in apparent agreement in a case that puts them at the heart of a presidential election.
A definitive ruling for Trump, the leading Republican candidate for president, would largely end efforts in Colorado, Maine and elsewhere to prevent his name from appearing on the ballot.
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The justices could act quickly, possibly by Super Tuesday on March 5, when Colorado, Maine and 13 other states will hold primaries.
Conservative and liberal justices alike questioned during arguments Thursday whether Trump can be disqualified from being president again because of his efforts to undo his loss in the 2020 election to Democrat Joe Biden, ending with the Jan. 6, 2021, attack on the U.S. Capitol.
Their main concern was whether Congress must act before states can invoke a constitutional provision that was adopted after the Civil War to prevent former officeholders who “engaged in insurrection” from holding office again. There also were questions about whether the president is covered by the provision.
In the first ruling of its kind, Colorado's Supreme Court decided that the provision, Section 3 of the 14th amendment, could be applied to Trump, who the court found incited the Capitol attack.
But on a Supreme Court that prefers to avoid cases in which it is the final arbiter of a political dispute, the justices appeared to be searching for a consensus ruling and the issue of congressional action seemed to draw the most support.
Justice Elena Kagan was among several justices who wanted to know “why a single state should decide who gets to be president of the United States.”
Eight of the nine justices suggested that they were open to at least some of the arguments made by Jonathan Mitchell, Trump's lawyer at the Supreme Court. Trump could win his case if the court finds just one of those arguments persuasive.
Justice Sonia Sotomayor sounded most skeptical of Mitchell's arguments, though she too might not vote to uphold the Colorado ruling that found that Trump “engaged in insurrection” and is ineligible to be president.
In another sign of trouble for the Colorado voters who sued to remove Trump from the ballot, the justices spent little time talking about whether Trump actually “engaged in insurrection” following the 2020 election.
Lawyer Jason Murray, representing the voters, pressed the point that Trump incited the Capitol attack to prevent the peaceful handover of power “for the first time in history.”
Mitchell argued that the Capitol riot was not an insurrection and, even if it was, Trump did not directly participate.
Trump, speaking to reporters after the proceedings, called the Supreme Court argument “a beautiful thing to watch in many respects,” even as he complained about the case being brought in the first place.
“I hope that democracy in this country will continue,” he told reporters at his Mar-a-Lago club in Florida.
Trump could be back before the Supreme Court in a matter of days to seek an emergency order to keep his election subversion trial on hold so he can appeal lower-court rulings that he is not immune from criminal charges.
That issue had a brief airing Thursday, when Justice Brett Kavanaugh said a more legally sound approach to disqualifying someone from office is found in a federal criminal statute against insurrection.
Someone prosecuted for insurrection “if convicted, could be or shall be disqualified” from office, Kavanaugh said.
Mitchell agreed, but with a caveat, Trump's claim of immunity. “So we would not concede that he can be prosecuted for what he did on January 6th,” Mitchell said.
The exchange was largely hypothetical because, while Trump faces criminal charges related to Jan. 6, he has not been charged under the insurrection statute.
The justices heard more than two hours of history-laden arguments in their first case considering Section 3 of the 14th amendment.
Chief Justice John Roberts worried that a ruling against Trump would prompt efforts to disqualify other candidates, “and surely some of those will succeed.”
Trump's lawyers argue that the amendment can't be used to keep Trump off the ballot for several reasons.
For one thing, they contend the Jan. 6 riot wasn't an insurrection, and even if it was, Trump did not go to the Capitol or join the rioters. The wording of the amendment also excludes the presidency and candidates running for president, they say. Even if they are wrong about all of that, they argue that Congress must pass legislation to reinvigorate Section 3.
Sotomayor at one point gently mocked part of Mitchell’s argument for why Trump is not covered by Section 3. “A bit of a gerrymandered rule, isn’t it, designed to benefit only your client?” Sotomayor said.
The lawyers for Republican and independent voters who sued to remove Trump's name from the Colorado ballot counter that there is ample evidence that the events of Jan. 6 constituted an insurrection and that Trump incited it. They say it would be absurd to apply Section 3 to everything but the presidency or that Trump is somehow exempt. And the provision needs no enabling legislation, they argue.
But Murray face sustained, difficult questioning across the high-court bench, including from Justice Neil Gorsuch and Kagan, two justices for whom Murray once worked as a clerk.
If the court in the end upholds the Colorado decision, it would amount to a stunning declaration that Trump did engage in insurrection and is barred by the 14th Amendment from holding office again. That would allow states to keep him off the ballot and imperil his campaign.
The justices could opt for a less conclusive outcome, but with the knowledge that the issue could return to them, perhaps after the general election in November and in the midst of a full-blown constitutional crisis.
Trump is separately appealing to state court a ruling by Maine’s Democratic secretary of state, Shenna Bellows, that he was ineligible to appear on that state’s ballot over his role in the Capitol attack. Both the Colorado Supreme Court and the Maine secretary of state’s rulings are on hold until the appeals play out.
The issues may be novel, but Trump is no stranger to the justices, three of whom Trump appointed when he was president. They have considered many Trump-related cases in recent years, declining to embrace his claims of fraud in the 2020 election and refusing to shield tax records from Congress and prosecutors in New York.
In addition to the immunity issue, the court also will hear an appeal in April from one of the more than 1,200 people charged in the Capitol riot. The case could upend a charge prosecutors have brought against more than 300 people, including Trump.
The court last played so central a role in presidential politics in its 5-4 decision that effectively ended the disputed 2000 election in favor of George W. Bush.
Justice Clarence Thomas is the only member of the court who also took part in Bush v. Gore. Thomas has ignored calls by some Democratic lawmakers to step aside from the case because his wife, Ginni, supported Trump’s effort to overturn the 2020 election results and attended the rally that preceded the storming of the Capitol by Trump supporters.