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In historic case, justices look ready to return Trump to ballot

Can a Civil War-era provision barring insurrectionists from public office push Donald Trump off presidential ballots? The U.S. Supreme Court appeared skeptical during oral argument.

By Henry Gass, Staff writer

In a historic oral argument today, the U.S. Supreme Court appeared likely to overturn a state court ruling barring former President Donald Trump from its primary ballot.

No U.S. court had ever issued such a decision. Then, in December the Colorado Supreme Court ruled that Mr. Trump 鈥 the current front-runner for the Republican presidential nomination 鈥 is disqualified by Section 3 of the 14th Amendment. That provision, adopted in the aftermath of the Civil War, holds that no one who 鈥渆ngages in insurrection鈥 against the United States can hold public office.

The case argued today, Trump v. Anderson, poses a simple question: Did the Colorado Supreme Court err in its ruling? On the evidence of two hours of often skeptical questioning, it appears that a majority of the high court believes the Colorado decision should be overturned.

But on what grounds?

The Colorado Supreme Court held that Section 3 applies to Mr. Trump because of his actions on Jan. 6, 2021, when a mob of his supporters attacked the U.S. Capitol to try to halt the certification of electoral votes naming Joe Biden president. It also cited Mr. Trump鈥檚 efforts to cling to power, claiming that the election he lost was 鈥渟tolen鈥 from him. But during oral argument, the justices 鈥 even the constitutional originalists 鈥 were more interested in the future than in past events. Namely, what could be the potential downstream effects of ruling that a single state can unilaterally disqualify a candidate in a nationwide election?

Chief Justice John Roberts noted that if they upheld the Colorado ruling, there would 鈥渟urely鈥 be other proceedings to disqualify other presidential candidates, some of which would succeed.

鈥淚t鈥檒l come down to just a handful of states that are going to decide the presidential election鈥 by barring certain candidates,聽he added. 鈥淭hat鈥檚 a pretty daunting consequence.鈥

鈥溾楶resident鈥 is not there鈥

Justice Clarence Thomas noted that, since Section 3 was ratified in 1868, it hasn鈥檛 been applied to many federal offices. Justice Ketanji Brown Jackson, meanwhile, questioned whether the framers of Section 3 envisioned it being used in the context of a national election. The text of the provision, she added, lists specific offices it covers 鈥 including in Congress and in state government 鈥 but doesn鈥檛 mention the presidency.聽

Wasn鈥檛 Section 3 鈥渁bout preventing the South from rising again in the context of these local elections, as opposed to focusing on the presidency?鈥 she asked. 鈥淭he thing that really is troubling to me is ... they were listing people that were barred and 鈥榩resident鈥 is not there.鈥

Other justices raised practical concerns with this potential outcome. Different states have different rules around election disputes. When Section 3 cases are raised in different states, their state courts may have different procedural rules.

鈥淪uppose we have two different records, two different bodies of evidence, two different rulings on admissibility, two different standards of proof,鈥 asked Justice Samuel Alito. 鈥淚鈥檓 not getting a whole lot of help from you about how this would not be an unmanageable situation.鈥

The 鈥測ou鈥 he was referring to is Jason Murray, the attorney for the Anderson litigants and the target of many of these questions from the high court.

Mr. Murray argued that whatever states may choose to do, Section 3 provides a 鈥渄emocratic safety valve鈥 for disqualified candidates by empowering Congress to lift that disqualification with a two-thirds vote.

And while states have broad power over how they can run national elections 鈥 including how they apply Section 3 鈥 Mr. Murray argued the Supreme Court has the authority to create nationwide standards for states to follow, just as it does with other constitutional provisions. Congress could also pass a law setting such standards.

The reason there aren鈥檛 any uniform guidelines already, he added, is because there have been so few 鈥渋nsurrections鈥 in American history. But many of the justices seemed eager to avoid any colloquy related to the violence on Jan. 6 itself.

鈥淭here鈥檚 a reason Section 3 has been dormant for 150 years, and it鈥檚 because we haven鈥檛 had anything like Jan. 6 since Reconstruction,鈥 Mr. Murray told Chief Justice Roberts.

鈥淚t seems to me you鈥檙e avoiding the question,鈥 the chief justice replied. If the court upholds the Colorado decision, he continued, 鈥渨e would have to develop rules for what constitutes an insurrection.鈥

鈥淲hy would that rule exist?鈥

The justices spent a bit more time on the question of whether Section 3 covers the presidency. The provision explicitly bars someone from being a member of Congress, an elector of the president and vice president, or holding an 鈥渙ffice ... under the United States,鈥 as well as anyone who has previously taken an oath to support the Constitution as an 鈥渙fficer of the United States.鈥

Jonathan Mitchell, the attorney representing Mr. Trump, argued neither of the catchall terms 鈥渙ffice鈥 and 鈥渙fficer鈥 applies to the president. 鈥淚t鈥檚 clear from the constitutional text that there are officers that do not hold offices under the United States,鈥 he said.

鈥淔rom original understanding, or a textualist perspective, [how can] those two terms, so closely related, carry such different weight?鈥 asked Justice Neil Gorsuch, perhaps the court鈥檚 most avid textual stickler.

Justice Sonia Sotomayor, meanwhile, noted that if Section 3 did cover 鈥渙fficers,鈥 it would cover almost every president in history except Mr. Trump, since he鈥檚 the only one who didn鈥檛 previously serve as a different 鈥渙fficer.鈥

鈥淲hy would that rule exist?鈥 asked Justice Elena Kagan. 鈥淚s there any better reason for saying that an insurrectionist cannot hold a whole panoply of offices in the United States, but we鈥檙e perfectly fine with that insurrectionist being president?鈥

Yet while some justices voiced concerns about excluding the presidency, and Mr. Trump, from Section 3, the court鈥檚 overriding concern seemed to be the potential for nationwide electoral confusion if it upholds the Colorado Supreme Court鈥檚 ruling.

Late in the argument, Shannon Stevenson, the Colorado solicitor general, argued that the Constitution gives states broad discretion in how they can run federal elections. States could fashion different processes for Section 3 cases, she argued, but states already do that for other election cases.

But this is not a normal election case, noted Justice Alito. 鈥淲e鈥檝e been told that if what Colorado did here is sustained, other states are going to retaliate,鈥 he added. 鈥淲hat about that situation?鈥

鈥淚 think we have to have faith in our system,鈥 replied Ms. Stevenson. 鈥淲e have institutions in place to handle those types of allegations.鈥

鈥淲hat are those institutions?鈥 asked Justice Alito.

鈥淥ur states, their own electoral rules, the administrators who enforce those rules, the courts that will review those decisions,鈥 she replied, 鈥渁nd up to this court to ultimately review that decision.鈥