Takeaways from the Trump voting case

The Supreme Court on Thursday grappled with whether former President Donald J. Trump is constitutionally ineligible to hold office again, as the Colorado Supreme Court ruled in barring him from the ballot in that state.

The issue centers on whether Section 3 of the 14th Amendment applies to Mr. Trump because of his efforts to remain in office after losing the 2020 election that culminated in the January 6, 2021 riot. The provision prohibits people who were involved in an insurrection against the Constitution after taking an oath to support the Constitution as an “officer of the United States.”

There are several takeaways here.

It seemed unlikely that Colorado's ruling would stand.

Enough justices expressed skepticism about the Colorado Supreme Court's decision that a majority of the court would likely hand Mr. Trump a victory and vote to overturn it.

Most justices seemed generally receptive to the various arguments that the former president's attorney, Jonathan F. Mitchell, made in support of overturning the lower court's ruling. His two main claims were that Section 3 is not “self-executing,” meaning it can only be enforced by a separate act of Congress, and that the provision simply did not apply to a former president like Mr. Trump.

Significantly, two of the Court's three liberal justices, Elena Kagan and Ketanji Brown Jackson, joined their conservative colleagues in expressing doubts about allowing a state to decide who can run for national office .

Judge Kagan expressed concern that by allowing Trump to be removed from the ballot in Colorado, it could set a precedent by giving individual states “extraordinary” power to influence national elections.

Judge Jackson pointed out that the text of the amendment does not explicitly include “president” in the list of offices that can be disqualified for participating in the insurrection. That's because the amendment, she argued, was not initially intended to stop Southern rebels from running for president, but rather to stop them from using their popularity in their home states to seek local offices and run for office again. to gain power by running for Congress.

Several justices asked questions that expressed concern that upholding Mr. Trump's disqualification by the Colorado Supreme Court could unleash broader chaos or otherwise harm democracy.

Chief Justice John G. Roberts Jr. repeatedly raised the prospect that scores of other states could retaliate by removing a Democratic candidate — he did not specifically name President Biden — from their ballots by saying he, too, was involved in an insurrection . Judge Samuel A. Alito Jr. continued to return to that point, raising the specter of 'uncontrollable consequences'.

Lawyers for Colorado voters who questioned Trump's eligibility to vote, and the state of Colorado, urged the justices not to view that potential consequence as a reason to overturn their state's action. Jason Murray, an attorney for the voters' group, said courts can stop abuses of the process.

“This court can write an opinion that emphasizes how extraordinary 'insurrection against the Constitution' is and how rare it is, because it requires an attack not only on the application of the law, but also on constitutionally mandated functions themselves, as we noted on 6 saw in January. said Mr. Murray.

Justice Brett Kavanaugh asked Mr. Murray whether the position that Mr. Trump cannot become president again would be harmful to democracy because it would effectively disenfranchise people who want to vote for him. Mr. Murray responded that the purpose of the constitutional guarantee is to protect democracy not just for the next cycle, but for generations to come.

“The reason we are here is because President Trump tried to disenfranchise 80 million Americans who voted against him, and the Constitution does not require him to be given another chance,” he said.

Several judges wondered whether a statute is necessary.

A possible way out for the Supreme Court to overturn the Colorado ruling would be to say that Section 3 is not “self-executing,” meaning it has no legal force on its own and requires a statute enacted by Congress to to be implemented.

The Supreme Court has previously held other parts of the 14th Amendment to be self-executing, meaning they don't need such a statute, but multiple justices focused on how allowing states to enforce Section 3 would violate with the rest of the amendment as it was largely about taking away the power of state governments after the Civil War.

For example, Justice Clarence Thomas, the first member of the court to speak, opened arguments by encouraging Mr. Mitchell to explain his view that the provision is not self-executing and thus Colorado had no authority to enforce it.

Yet Justice Sonia Sotomayor pointed out that numerous states have relied on Section 3 to disqualify candidates for state office, even though there is no congressional statute telling states they can do so.

Some justices questioned whether presidents are “officers of the United States.”

Judge Jackson was not the only justice to express interest in the argument that Section 3 does not cover people who only took an oath as president to support the Constitution — like Mr. Trump — as the phrase in Section 3 “officer of the United States'. were to be interpreted as applying only to appointed officials, not to elected officials

Noting that another part of the Constitution says the president shall appoint “all” officers of the United States, Justice Neil M. Gorsuch noted that presidents do not appoint commissions to themselves. He also pointed out that the Constitution describes the Speaker of the House of Representatives and the President pro tempore as officers, but another clause says members of Congress cannot simultaneously be “officers of the United States.” are.

But Justice Sotomayor was skeptical of that view, suggesting it was a “gerrymandered” argument. Of all modern presidents, she added, this would apply only to Mr. Trump, who has not previously been sworn in as a member of Congress or as a military officer or as a lower-ranking official in the civilian executive branch.

There wasn't much talk about whether January 6 was an insurrection.

Given how central the issue of participating in the insurrection was to the disqualification process, it was somewhat surprising how little the judges and lawyers talked about whether or not Trump's role in the attack on the Capitol on January 6 was an act . of rebellion.

Mr. Mitchell made scant mention of the storming of the Capitol during his presentation to the court, preferring to stick to highly technical issues of the law. And while Mr. Murray opened his arguments by blaming Mr. Trump for his involvement in the Jan. 6 insurrection, the justices largely sidestepped the actual question of whether his characterization was accurate as they bombarded him with questions.

Judge Kavanaugh, in a rare dive into the insurrection issue, at one point asked Mr. Murray why states should be given the power to disqualify insurrectionists under the 14th Amendment when there was already another “tool” to disqualify them from office: Under federal law, it is a crime to incite, assist, or participate in an insurrection against the United States.

Of course, none of the 90-plus charges Trump faces in his four separate criminal cases accuse him of participating in an insurrection, even though the House committee that investigated the events of January 6 recommended that he be charged with the revolt. federal insurrection count.

What happens now?

The judges did not indicate when they would rule. But what they decide could have ramifications far beyond Colorado: There have been issues with Trump's eligibility in at least 35 states. And not only the outcome, but also the rationale behind it will resonate.

For example, one focus of the arguments is that if the court were to overturn the Colorado ruling on procedural grounds, rather than ruling on the merits of whether Mr. Trump is constitutionally ineligible to run for president again, this could lead to a later constitutional crisis.

If he were to subsequently win the election, the question would return, including for members of Congress who would be asked to certify the Electoral College results on January 6, 2025.